Thursday, March 22, 2012

Vic Toews is watching you he's everywhere!

Good Day Readers:

It seems Twitter may not be Mr. Toews's only problem. You may recall the hacker group Anonymous released it's third anti-Vic Toews YouTube video recently (March 2).
Since it was announced (March 6) a Parliamentary Committee would be struck in an attempt to learn the identity(ies) of those responsible, a move some are already calling an exercise in futility, the visitor numbers have spiked. As of this writing they stand at 9,656.

Clare L. Pieuk

Court file ruling 'abusive'
Manitoba order to let Toews see who looked at file unprecedented

By Cristin Schmits
March 23, 2012 Issue
The open court principle is harmed by a judgment, suggests CCLA counsel Nathalie Des Rosiers of Ottawa. (Photo by Ray Grogan for The Lawyers Weekly)

An unprecedented ex parte ruling won by a senior federal Cabinet minister this month raises a far-reaching question: Should litigants be permitted to find out who has viewed their court documents?

The ruling, issued on March 7 by Manitoba Court of Queen’s Bench Justice Richard Saull, required the court’s registrar to disclose to Public Safety Minister Vic Toews the list of people who viewed the politician’s divorce file over the past year.

The judge made the order on an expedited basis, without hearing from the people on the list, who were not notified of the proceeding. Toews’s counsel filed a motion for disclosure of the names on an urgent basis because he said his client wanted them in time for a House of Commons Ethics Sub-Committee meeting slated for March 8.

The names of two NDP researchers were subsequently identified as being on the list. No one appeared in court to oppose the motion, although the Manitoba Justice Department sent a lawyer with a “watching brief” who spoke briefly but did not take a position on the application.

In light of the judge’s ruling, the registry of the Manitoba Court of Queen’s Bench is now revisiting its policy that, in the absence of a court order, names of those who view court files should not be disclosed, spokeswoman Aimee Fortier confirmed.

“Consideration is being given to amend the access policy with respect to the ‘request for information form,’ ” Fortier said. “The current [form] does not indicate to the requestor that there is the possibility of disclosure of their having viewed a particular court file and their identification in this regard.”

Toews sought the information after personal and financial allegations reproduced from the affidavits he and his wife filed in court in 2010 were anonymously disseminated on Twitter by a Liberal staffer, who has since resigned. Toews’s 32-year marriage ended after he told his wife he was having an affair and expecting a child with the woman.

The registrar initially refused to release the names requested by Toews’s lawyer, Robert Tapper of Tapper Cuddy LLP, on the basis that the court’s log, which is used to maintain the integrity of its files, was a record of court administration and not part of the open court file.

But after hearing from Tapper, who made brief oral submissions by telephone from Mexico, Justice Saull ruled that the court’s tracking forms — which everyone but lawyers and journalists must fill out to see a file — are public documents that should be disclosed.

Justice Saull accepted Tapper’s submissions that there are no public policy reasons to provide anonymity to those who view the file. Toews clearly “has a vital interest in knowing who accessed his personal affairs,” the judge said. “To my mind, when one considers public policy, it seems to me at its core unfair that someone should have their personal matters revealed at the whim of any passerby and not be able to know who it was who had access, regardless of the motives of that person.”

The judge, who was appointed by the federal government in 2010, said the registry’s tracking document has the dual purpose of ensuring the integrity of the file and its location, but also “to provide that there is some accountability forthcoming from those who tamper with or who make mischief with its contents.”

The ruling was condemned by some who see it as violating the open court principle — ​a breach made worse by the fact that the people who viewed the file, were not notified of the application.

“My reaction is that the legality of this order, in light of the open court principle is problematic,” said Nathalie Des Rosiers, general counsel of the Canadian Civil Liberties Association.

She said Toews’s motion made an “end run” around the probability that he could not have obtained (and in fact did not seek) a sealing order, anonymity order or publication ban. “In a way when you’re a public official, you should accept that public documents about yourself are fair game,” she said.

She said the order should be appealed given that important public policy questions were argued from only one perspective.

While some people may disagree with the tactic of anonymously publishing divorce affidavit allegations on the Internet, it doesn’t mean that this amounted to “mischief,” said Des Rosiers. “There is nothing illegal here in publishing information that is readily available, so indeed I would say, in this context, it should be protected as political speech.”

Des Rosiers said “privacy expectations in Canada are that personal information collected, such as the name of people accessing a file, will only be used for purposes for which it was collected, that is court-related controls.”

The court’s reasoning also raises the chilling prospect of the state, criminal accused, businesses, litigants, and others being able to monitor who has been looking at particular court files, she said.  For example, “you have a company who is suing somebody else and then wants to know who has access to the documents and to see whether there are any of their union officials or any of their own employees looking at the file,” she said.

Media lawyer Iain MacKinnon of Toronto’s Chitiz Pathak LLP described the court’s order as unprecedented.

“It is government and political power run amok,” he said. “It borders I think on being abusive, because I’ve certainly never seen anything like that, and arguably it could be an infringement of the [Charter] s. 2(b) rights to freedom of expression, not to mention infringement of various privacy rights that somebody might have.”

The fact that a Commons sub-committee was meeting did not justify granting an order without notice to the people on the list, said MacKinnon. The meeting could have been postponed or the persons on the list could have been notified between the time the application was filed on March 2 and heard on March 7.

The open court principle — ​which protects the public’s right to attend court proceedings and view non-sealed court files — ​doesn’t extend to publicly identifying the people who view documents or attend proceedings since those people are not themselves part of the court’s process, explained MacKinnon.

He queried whether litigants and others will now argue that they should get access to video from court security cameras in order to identify who has attended a particular proceeding.

“I’m generally in favour of openness as much as is possible, but this is not a principled basis of openness — ​this is to pursue political enemies,” he said.

“That’s just ridiculous,” Tapper responded. He said Toews has a cause of action for intentional infliction of harm, given the personal embarrassment he suffered from the dissemination of the divorce allegations, and the subsequent threats of harm to him and his family, which Tapper said are under investigation by the RCMP.

“You can’t just take something that has a private aspect to it and reveal it publicly for the sole purpose of embarrassing somebody, or causing them harm,” Tapper argued. “That in and of itself is legally actionable.”

The allegations made against Toews by his wife, while contained in a public court file, were of a nature irrelevant to his public role as a minister and therefore should not have been used to embarrass him,” said Tapper.


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