Ottawa Judge Robert J. Smith Excludes Student Media Reporter from Court Transparency Issue
On March 28, at the Ottawa Courthouse, Justice Robert J. Smith denied Student’s-Eye View blog reporter and University of Ottawa student Joseph Hickey’s Motion for Leave to Intervene in support of public observation of out-of-court cross-examinations in the case of St. Lewis vs. Rancourt.
Mr. Hickey’s desired to be granted “Intervener status” to make arguments on a Motion for Leave to Appeal put forward by the Defendant, Mr. Rancourt. The Defendant’s motion requested permission to appeal a judge’s order made on Feb. 8 barring the public from attending upcoming out-of-court cross-examinations. Allan Rock, the President of the University of Ottawa, is one of the witnesses who will be cross-examined by the Defendant about his decision to fund the entirety of the Plaintiff’s legal fees with the lawfirm Gowlings LLP using government and student tuition money.
Media Reporting: Charter Right or Mischief-Making?
Two hours were spent Wednesday morning arguing Mr. Hickey’s motion. The student presented the most relevant facts and arguments from his affidavit and factum, which were served on the Defendant, Plaintiff, and the University of Ottawa on March 22 (Hickey’s motion record, factum).
As a member of the student media who had previously attended and covered two out-of-court cross-examinations in the action, Mr. Hickey argued that the Feb. 8 judgement (link) barring the public and the media from upcoming cross-examinations in the case would deny his Charter rights to observe and report on the court process.
The student stressed that his sole interest was to argue for public observation of out-of-court cross-examinations, and that he had no interest in intervening in any of the other issues in the action, such as on the questions of defamation or improper use of university funds. Furthermore, he submitted that, as a member of the public and the media arguing in defence of his Charter rights, his perspective was unique from the other parties in the action, and he submitted that he had received support from the Civil Liberties Association of the National Capital region in his endeavour to obtain access for observers to out-of-court cross-examinations (link).
The Plaintiff’s and the University of Ottawa (Intervener’s) counsels Richard Dearden‘s and Peter K. Doody‘s arguments against Mr. Hickey’s Motion to Intervene amounted to claims that he was a “mischief-maker” and a “meddler,” and was only there to prejudice and delay the resolution of the case.
During the student’s presentation, Justice Smith interrupted Mr. Hickey numerous times to interrogate him about his interest as a media person, including questions about the contents of A Student’s-Eye View (previous articles HERE). The judge repeatedly asked why a member of the media was any different from anyone else who wanted to apply to intervene in a court proceeding, and suggested that chaos would ensue if any member of the public could intervene in a court process.
Ruling: Intervention for some, Exclusion for others
After a recess, Judge Smith presented his decision, based on Rule 13.01 of the Ontario Rules of Civil Procedure. This rule states that a proposed Intervener must have an interest in the subject matter of the proceeding. In making his decision, Justice Smith stated:
“I do not find that Mr. Hickey has an interest or perspective different from the Defendant’s. The nature of the case is also a factor to be considered, and in this case it is a libel action between two individuals. I do not find that Mr. Hickey would make any useful contribution to the resolution of the dispute between Mr. Rancourt and Ms. St. Lewis, or make a useful contribution towards resolving the question of whether or not Leave to Appeal should be granted of Justice Beaudoin’s order or Master MacLeod’s order.” – Smith J, March 28, 2012
Justice Smith did not explain how he evaluated a student reporter and elected member of University of Ottawa Senate’s interests in court transparency to be the same as the Defendant’s, a former professor at the university. Moreover, it is difficult to understand why the Justice would consider the nature of the underlying libel action in his decision to exclude Mr. Hickey, when the student had stated in his oral presentation and in his factum that his sole interest and concern was public observation.
Rule 13.01(b) states that a person may move to intervene if the person may be adversely affected by a judgement in the proceeding. Justice Smith’s oral statement about part (b) of the Rule was:
“I also find that Mr. Hickey would not be adversely affected by the judgement in favour of either Ms. St. Lewis or the Defendant, Mr. Rancourt since this is a private dispute between two individuals.” – Smith J, March 28, 2012
In contrast, when Mr. Doody motioned to intervene for the University of Ottawa in January (paras. 25-29 of his factum, HERE), he argued that the University’s reputation would be adversely affected by the finding of a champertous (improper) funding agreement between the University and Professor St. Lewis. Justice Beaudoin permitted the University to intervene without requiring it to argue its motion, stating explicitly that an affected party has an automatic right to intervene under the Rules.
Joseph Hickey argued that, as a member of the student media, he would be adversely affected in his Charter rights under the open court principle by being barred from observing and reporting on cross-examinations of the type which he had already covered in the case. Although Mr. Hickey’s March 28 Motion for Leave to Intervene was based on the explicit statements and order made by Justice Beaudoin on Feb. 8 about the automatic right of an affected party to intervene (Hickey’s factum, motion record), Justice Smith decided that Mr. Hickey was not affected, and rejected the student’s intervention on the basis that the underlying defamation action was between two private individuals.
Finally, Rule 13.01(c) allows a person to intervene if there is a question of law in common between the person and one of the parties. The Justice’s ruling was that there was no question of law in common, striking down the student’s submission that his Charter rights were denied by the Feb. 8 order which barred the public from attending out-of-court cross-examinations and simultaneously blocked the issue of public observation from being argued on its merits as part of the Defendant’s “Open Court Motion” (link).
In his concluding remarks, Justice Smith voiced that the student media member’s intervention would only add “additional time and expense to the judicial proceedings” which would be “prejudicial” to the Plaintiff. To the contrary, allowing Mr. Hickey’s proposed 15 minute intervention would not have required significant resources in comparison to the entire morning spent arguing its merits. Furthermore, the judge appeared not to take into consideration the fact that the University of Ottawa had not been granted intervener status for the Leave to Appeal motion being discussed that day, yet was acting as a full-fledged intervener before the court arguing against Mr. Hickey’s intervention.
Legal fees as Punishment of Student Reporter
Costs submissions followed the judge’s decision, during which the lawyers for Joanne St. Lewis and the university vehemently accused the student of being a mischief maker who needed to be punished by the court with the maximum charge of “substantial indemnity” costs against him for their legal fees (link). Justice Smith permitted a 20 day deadline for the student to submit five pages of written arguments for why his proposed intervention in favour of court transparency was a matter of public interest that should not be attributed costs. Joanne St. Lewis and the University of Ottawa will have 10 days to respond following Mr. Hickey’s costs submission.