QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 349 Date: 2010 09 29 Docket: Q.B.G. 1578 of 2010 and Q.B. 1581 of 2010 Judicial Centre: Regina BETWEEN: Q.B.G. 1578 of 2010 RONALD WARSABA, PATRICIA WARSABA and SPENCER WARSABA (suing by his Litigation Guardians Ronald Warsaba and Patricia Warsaba) and BOARD OF EDUCATION OF THE REGINA SCHOOL DIVISION NO. OF SASKATCHEWAN DEFENDANT AND BETWEEN: Q.B.G. 1581 of 2010 MICHAEL TULLOCH, an infant, suing by his litigation guardian, David Tulloch and BOARD OF EDUCATION OF THE REGINA SCHOOL DIVISION NO. OF SASKATCHEWAN Counsel: Reginald Watson, Q.C. for the plaintiffs Warsaba N. Tulloch for the plaintiff Tulloch J. McLellan for the defendant F.W.. Johnson, Q.C. for the Regina Leader-Post JUDGMENT KRAUS J. September 29, 2010 [1] The defendant applies for an order sealing the affidavits of two young persons. Counsel for the plaintiffs consent to the order. Counsel for the Regina Leader-Post, granted leave to speak to the matter, opposes the application. [2] The defendant submits that the young persons, JP and JR, now in Grade 9, were victims of a brutal hazing assault conducted by senior students, including the plaintiffs, and that public disclosure of information in their affidavits would exacerbate the harm which has been done to them. [3] Counsel for the Regina Leader-Post submits that sealing order is at the top of the range of the hierarchy of protections which the court may afford to individuals in our society and that the onus is on the applicant to establish on continuing basis that this remedy is required. Counsel refers to the two part test set out by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] S.C.R. 835 (S.C.C.) and R. v. Mentuck, 2001 SCC 76 (CanLII), [2001] S.C.R. 442 (S.C.C.) to determine whether restrictive publication should be ordered: the necessity to prevent serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk; and, the positive effects on the rights and interests of the parties and public, including the right to free expression. [per Iacobucci J. at para. 32, R. v. Mentuck, supra] [4] Bearing in mind the efficacy of the high school grapevine in this electronic age, publication of the factual accounts of the young persons in their affidavits will not cause further harm to them in my view. The public, including fellow students of the young persons, have the right to know their version of the facts. However, I am satisfied that other portions of the affidavits which speak to the effects of the assault on the two young persons and ramifications to others should be sealed since there is a real and serious risk of further harm to the young persons and to others. The evidence of Don Hoium, Director of Education and former educational psychologist, brings home the point: 5. am concerned that if the evidence of the Children were to be made public, it may provoke harassment and acts of retaliation against the Children and their families, possibly by other students. am concerned that such disclosure would put both the physical and psychological well-being of the students and their families at further risk. 6. am aware that the Children and their families have been the subject of negative comments on the social networking site Facebook. 7. Based on my education and experience, believe that any further publication or disclosure of the details of the assaults or the related legal proceedings would add to and aggravate the psychological harm already suffered by the Children and their families. 8. In particular, the dissemination of the verbal or visual evidence of the assaults in the media or on social networking sites may result in significant prejudice to the Children’s privacy and sense of personal dignity. believe that the Children are particularly vulnerable to these types of harm due to their young age. In my experience, both privacy and peer acceptance tend to be particularly crucial to the self-esteem and psychological well-being of adolescents. 9. The Division has attempted to normalize the Children’s introduction into Campbell Collegiate to the greatest extent possible. It is my view that further publicity and disclosure of the Children’s evidence would jeopardize the Children’s integration into Campbell Collegiate by stigmatizing and alienating the Children from their peers. 10. Furthermore, it is my view that disclosure of the evidence would be disruptive to the learning environment at Campbell Collegiate for the student body as whole. The assaults and the related proceedings have already generated strong emotions on all sides. In my opinion, any further publicity of the allegations made by the Children can only serve to aggravate the controversy and detract from the education and well-being of the student body as whole. ... [Affidavit of Don Hoium, sworn September 9, 2010] [5] To balance the rights and interests of the two young persons, the plaintiffs and the public, portions of the affidavits of the young persons must be sealed as follows: the affidavit of JR: paragraphs 9-13 inclusive; Exhibit “B” thereto, depicting physical injuries; and Exhibit “D” thereto, victim impact statement of HR. the affidavit of JP: paragraphs 8-14 inclusive; Exhibit “A” thereto, victim impact statement of JP; Exhibit “B” thereto, victim impact statement of SP; and Exhibit “E” thereto, apology of RL. [6] Otherwise, the remaining balance of the two affidavits need not be sealed. [7] As everyone knows, Parliament prohibits publication of the identity of young person by ss. 110 and 111 of the Youth Criminal Justice Act, S.D. 2002, c. 1. [8] There is no order as to costs which were not put in issue. J. G. M. KRAUS
The defendant applied for an order sealing the affidavits of two young people who were the victims of a brutal hazing assault conducted at a high school by senior students, including the plaintiffs. The defendant argued that public disclosure of the affidavits would exacerbate the harm that was done to the young people. The Leader-Post was granted leave to speak to the matter and opposed the application. HELD: Bearing in mind the efficacy of the high school grapevine, particularly in an electronic age, publication of the factual accounts of the young persons in their affidavits will not cause further harm to them. The public, including fellow students, have the right to know their version of the facts. However, other portions of the affidavits that refer to the effects of the assault on the young men and their ramifications to others should be sealed because there is a real risk of further harm to the young persons and to others.