Remain Nameless

I wrote in the past, here and here, about the serious problems that can result from people’s involvement in lawsuits, and details of their private lives and quarrels being exposed for all to see in court decisions available on the internet. But bad as it is if your name being associated with a lawsuit prevents you from getting a job or lets your neighbours know things about you that you don’t want them to, the dangers are worse for some people, as a case now before the Québec Court of Appeal illustrates.

The case concerns the constitutionality of the requirement of s. 59 of the Civil Code of Québec that a person applying for a change of name in Québec be a Canadian citizen. The appellants, who brought the constitutional challenge, are a parent and child who were granted refugee status because of a risk of persecution by the state and/or their relatives, including the spouse/other parent in their native country. In order to avoid the spouse tracing them in Canada, they seek to have their names changed. But s. 59 CCQ prevents this until they become Canadian citizens―which will not happen for several years at best. The Superior Court dismissed their constitutional challenge for lack of service to an interested party―the spouse/other parent (escaping from whom is the whole point), and they are appealing.

They have also brought a motion to ensure the confidentiality of the proceedings, on which the Court ruled last week in Droit de la famille 123545, 2012 QCCA 2224. The appellants asked for

the right to proceed anonymously, a prohibition on access to court records through a permanent sealing order, a prohibition on access to any resulting judgment unless any passage that could be used to identify the appellant, the child and the other parent have been removed, as well as a publication ban designed to protect the identification and location of the appellant and the child (par. 16).

As the Court pointed out, there are important considerations at stake. On the one hand, there is the principle of open court, which is especially compelling in this case since it involves a challenge to a the constitutionality of a statute. But “[o]n the other hand, the appellant and/or the child would face the likelihood of serious harm, including the risk of kidnapping and even death, if some relatives were made aware of their whereabouts” (par. 15).

Balancing these factors, the Court granted the motion in part. It allowed the appeal to proceed anonymously, using pseudonyms, rather than only banning the publication of identifying information (while still making it available to media or lawyers) as is usual in family cases in Québec. Instead of sealing the entire court file, however, it ordered the creation of two separate files, one sealed, and the other, accessible to the public, from which identifying information will have been removed. The Court also refused to ban the publication of judgments, so long as they do not identify the appellants. It did grant the ban on publication of identifying information, which is already standard practice in family matters in Québec.

Sounds right to me. The decision on the constitutional challenge itself will be interesting. Stay tuned.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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