Should some names not be listed in court cases?

Sometimes when persons are accused of crimes and it is later determined that those persons are innocent, the damage to their reputations has already been done. Just as you cannot un-ring a bell, you cannot change the minds of everyone who knows about the case. For example, if you are charged with molesting a small child and the newspapers publish your name, you will forever be dammed in the eyes of a great many people even if after your trial, it is determined that you were entirely innocent of the charge. There will be people who will say that the trial was a farce and that where there is smoke, there is also fire. You could live with that problem for the rest of your life. The only thing left for you to do is to move far away from your area and hope that where you move too, no one has heard or read about you.

Fortunately, some responsible newspapers don’t publish the name of an accused unless he or she is convicted. Unfortunately, most newspapers are not that responsible enough to avoid inadvertently damaging the reputation of an innocent person. I remember years ago reading about a man who was accused (along with others) of committing a sexual crime. He was publicly humiliated and so embarrassed, he committed suicide. Later it was determined at trial that he and the others were entirely innocent.

But what does a responsible newspaper do if the accused is a prominent person? It would be folly to not publish his name since TV and radio reporters would also be there at the court house and anyone looking at their TV would recognize who the accused is. But suppose the accused is a school teacher. If the teacher’s name is published, and he is later found innocent, his reputation would still be destroyed because once a school teacher’s name is besmirched, the stain can never be permanently removed. That is because the student’s minds are not up to speed yet. This applies also to doctors, priests and child care workers.

Perhaps one way to solve this problem is for the news media to go out of its way to tell the public why the accused was acquitted. Of course, if the case against the accused is dismissed because of some technical error, such as the crown waited too long for the trial to begin or the witness died, this would make matters even worse. However, if the judge concludes that the accused really didn’t commit the crime and he came to that conclusion because the complainant’s testimony was highly suspect, then his decision and the reason how he arrived at that decision should be published.

What do we do about a man who is accused of being a serial rapist? The public will argue that it has a right to be informed of his name and that right would be justified for three reasons. The first being; was he the man who raped your daughter, a man whom she didn’t see but a man who left his semen behind? The second being; it is conceivable that he may be released on bail and you want to know if he is a neighbour of yours. The third being; if he is working at a child care centre, his employer will want to know that he is charged with a sexual offence. But then, couldn’t these three reasons also apply to a man who is accused of only one rape? Yes, it could but there is less danger to the community when there is only one victim. Many men charged with raping a woman have been found innocent because the complainant made up the story but the chances of a several women (in the case of a serial rapist) making up their stories is more unlikely.

Canada’s Privacy Commissioner is going one step further. She is proposing radical changes to the long-standing rule that courts are open to public scrutiny. Under the proposal, names and personal information would be removed from judges' decisions along with case information posted on the Internet. Initials would replace actual names as part of the "anonymizing" process.

This is sometime done in family court. In that court, especially where the issue before the court is child custody, the names of the parties are generally changed to initials but not always. In fact in many cases I studied when I was practicing in family law, not only the last names of the man and wife were written up in the decisions, their first names were also included. In some cases, even the names of their children were listed in the decisions. Further, the city where they all live is also included in the decision.

This in my opinion is very wrong. There was a time when it was almost impossible to get that information unless you were a party to the case. Although information in court records is considered public, it has in every practical sense stayed obscure until fairly recently, because few people besides reporters would wander into a courthouse basement to read it. Now anyone can get the names of all the parties by simply going to the internet and searching through various law search programs.

Imagine if you will that your child’s name is listed in a decision in which any kid on the block can find your case via the law search programs. How will you feel if you discover that that your neighbour’s kid learned from finding your case in the internet that your son suffers from some form of mental illness and now the neighbour’s kid has told all his friends at school all about your son’s illness?

Removing the names of child suspects should also be law. For example, many years ago, the police charged an innocent man with the murder of an eight-year-old girl. During the trial, the lawyer for the innocent man mentioned that he suspected that the girl’s brother may have committed the murder and then he explained to the court the facts with respect to the brother having sex with his sister. Years later, during the man’s appeal, it was determined via DNA, that neither he nor the brother of the girl had raped her and killed her. Meanwhile, everyone became aware that the brother had previous sex with his sister. Now he has to live with that public disclosure for the rest of his life. Some things are best kept private.

In most cases, superior courts and appeal courts deliver decisions by way of written judgments, often posted on the courts' own websites. Expunging names would be a significant departure from the usual practices and seriously restrain the media – and the public – from knowing who's come before the justice system. I think this is important especially when the cases involve family law.

This doesn’t appear to be a problem in cases were young offenders are put on trial. In my review of a number of criminal cases involving young offenders, only their initials were used and nowhere in the decisions were their names used. They were referred to as ‘the young offender’ or ‘the young person’.

If changes are introduced – through amendments to the Privacy Act – they would only directly affect cases coming before federal tribunals, such as the Canadian Human Rights Tribunal. That's because the legislation only applies to federal institutions. It could apply in provinces if the provincial Privacy Commissions and Human Rights Tribunals kick in also.

However, courts – including the Supreme Court of Canada – are also considering whether they should take steps to conceal names and personal information from documents posted on their websites. And they would typically look to agencies such as the privacy commissioner's office for guidance in developing a policy.

There is no doubt in my mind that steps should be undertaken to protect the names of innocent people accused of crimes and the names of all children. In this day and age where children are being cyber bullied; the last thing you want is your child’s name showing up as text on some bully’s cell phone, especially when it is a direct quote from a court decision.