Summary
Chet Meek was an LDS bishop in Grand Prairie, Alberta when he sexually abused a woman who was a member of the LDS church.
The Mormon made payment to a woman who filed a civil lawsuit related to Meek’s abuse. The payment amount was not disclosed.
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LDS church payment: Undisclosed amount - Criminal: Convicted,
- Positions: Bishop, Other leader,
- During crime: Other leader,
- Crime: 1990s, in Canada,
- Convicted: 2000, 2000s,
- Crime scenes: Bishop's office, LDS building, Victim's home,
- Victims: 1 victim,
- AKA Chet Meek
- Mission: unknown
- Places: Canada,
LDS church payment: Sources
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1. source 1
From a court case filing:
"[2] In 1990, Chester Meek was appointed a Church leader in the Stake of the City of X. He held that position for approximately five years. During that time, Chester Meek committed sexual assaults against a number of young female Church members. After his leadership role in the Church had ended, he was charged with three counts of sexual assault, and was convicted of one count in 2000. The plaintiff in this action (t he minor) was not one of the complainants in the criminal actions. However, the minor has chosen to pursue a civil claim against the Church, seeking compensation for Meek=s tortious actions.
[3] The parties have reached an agreement wherein the Church will pay a sum of money to the minor as compensation; the minor thereby agrees to release the defendants from all claims. The minor, her parents, and Church officials have agreed to the settlement amount. The Public Trustee=s office has reviewed the settlement and supports it. The minor, after consultation with counsel, has signed a release.
[4] The Church has also requested that I order the file sealed to prevent publication and to protect the emotional health of the minor.
ISSUES
[5] The issues before me are therefore: 1) Is the proposed settlement in the best interests of the minor in the circumstances?, 2) Should the file be sealed to protect the minor=s emotional health? and 3) If the file should not be sealed, should this Court allow any restriction on the public=s access to the contents of it?
ANALYSIS[6] To determine whether the settlement is in the best interests of the minor, I must consider several factors: see e.g. S.(B.J.) v. S.(F.T.), [1990] A.J. No. 1059 (Q.B.). I am satisfied that the proposed settlement is a fair and reasonable compensation for the minor=s damages. The evidence indicates that the minor, her parents and next friend, and the minor=s counsel support the settlement. Further, the Public Trustee has approved it. The minor is currently sixteen years old, and is undoubtedly able to carefully consider her options. Finally, considering the
nature of the assault, I find that the monetary amount is fair.[7] I therefore find that the settlement is in the best interests of the minor, and I approve it on that basis.
[8] I now turn to the application for an order sealing the court file. The seriousness of such an application
is often misunderstood; it is necessary to carefully examine the proposed order in light of the presumptio n of open justice. The party applying for a restriction on public access has the burden of displacing that presumption.[9] The minor=s next friend swore an affidavit identifying the minor=s emotional health as the basis for the application. Any publication by the media or otherwise would, in the affiant=s opinion, endanger the minor=s emotional health. I accept that the protection of the minor=s emotional health is a legitimate concern, and that it is necessary in the fair administration of justice. Victims of sexual assault must be confident that the justice system will strive to balance their need for confidentiality with the legitimate interests of the other parties and the public.
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6. source 6
Doe v. Church of Jesus Christ of Latter-Day Saints in Canada, 2003 ABQB 794
Date: 20030918 Action No. 0303 17057
IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF EDMONTON
BETWEEN:
JANE DOE, JANE DOE BY HER NEXT FRIEND, MARY DOE AND JOHN DOE
Plaintiffs
- and -
THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS IN CANADA, THE CITY OF X STAKE, AN UNINCORPORATED RELIGIOUS ASSOCIATION, CORPORATION OF THE PRESIDENT OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS
_______________________________________________________
MEMORANDUM OF DECISION
of the
HONOURABLE CHIEF JUSTICE ALLAN H. WACHOWICH _______________________________________________________
APPEARANCES:
Daniel C.P. Stachnik, Q.C. Miller Thomson LLP
for the Defendants
Defendants
PUBLICATION BAN
THIS DECISION AND THE CONTENTS OF THE FILE ARE SUBJECT TO A PARTIAL COMMON-LAW PUBLICATION BAN. BY ANALOGY TO THE PROVISIONS OF S. 486(3) OF THE CRIMINAL CODE, BECAUSE THESE CIVIL
2003 ABQB 794 (CanLII)PROCEEDINGS ARE BASED ON ALLEGATIONS OF SEXUAL ASSAULT, THE IDENTITY OF THE PLAINTIFF AND ANY INFORMATION WHICH MAY TEND TO DISCLOSE HER IDENTITY SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST.
[1] The Church of Jesus Christ of Latter-Day Saints (the Church) has applied for a consent order in relation to a settlement subject to the Minors= Property Act, R.S.A. 2000, c. M-18, s. 15. It has also applied for an order sealing the court file.
FACTS
[2] In 1990, Chester Meek was appointed a Church leader in the Stake of the City of X. He held that position for approximately five years. During that time, Chester Meek committed sexual assaults against a number of young female Church members. After his leadership role in the Church had ended, he was charged with three counts of sexual assault, and was convicted of one count in 2000. The plaintiff in this action (t he minor) was not one of the complainants in the criminal actions. However, the minor has chosen to pursue a civil claim against the Church, seeking compensation for Meek=s tortious actions.
[3] The parties have reached an agreement wherein the Church will pay a sum of money to the minor as compensation; the minor thereby agrees to release the defendants from all claims. The minor, her parents, and Church officials have agreed to the settlement amount. The Public Trustee=s office has reviewed the settlement and supports it. The minor, after consultation with counsel, has signed a release.
[4] The Church has also requested that I order the file sealed to prevent publication and to protect the emotional health of the minor.
ISSUES
[5] The issues before me are therefore: 1) Is the proposed settlement in the best interests of the minor in the circumstances?, 2) Should the file be sealed to protect the minor=s emotional health? and 3) If the file should not be sealed, should this Court allow any restriction on the public=s access to the contents of it?
ANALYSIS
[6] To determine whether the settlement is in the best interests of the minor, I must consider several factors: see e.g. S.(B.J.) v. S.(F.T.), [1990] A.J. No. 1059 (Q.B.). I am satisfied that the proposed settlement is a fair and reasonable compensation for the minor=s damages. The evidence indicates that the minor, her parents and next friend, and the minor=s counsel support the settlement. Further, the Public Trustee has approved it. The minor is
2003 ABQB 794 (CanLII)3
currently sixteen years old, and is undoubtedly able to carefully consider her options. Finally, considering the
nature of the assault, I find that the monetary amount is fair.
[7] I therefore find that the settlement is in the best interests of the minor, and I approve it on that basis.
[8] I now turn to the application for an order sealing the court file. The seriousness of such an application
is often misunderstood; it is necessary to carefully examine the proposed order in light of the presumptio n of open justice. The party applying for a restriction on public access has the burden of displacing that presumption.
[9] The minor=s next friend swore an affidavit identifying the minor=s emotional health as the basis for the application. Any publication by the media or otherwise would, in the affiant=s opinion, endanger the minor=s emotional health. I accept that the protection of the minor=s emotional health is a legitimate concern, and that it is necessary in the fair administration of justice. Victims of sexual assault must be confident that the justice system will strive to balance their need for confidentiality with the legitimate interests of the other parties and the public.
[10] While the minor=s emotional health is an important consideration, it must be weighed against the strong presumption of an open justice system. Every restriction on the public=s access to court proceedings and records must be justifiable according to the law: see R. v. Mousseau, 2002 ABQB 205 at para. 3; Doe v. Roe, 1999 ABQB 281 at para. 3. In order to exercise my common law jurisdiction to restrict public access, I must satisfy myself that such an order is necessary according to the tests developed by the Supreme Court of Canada: see Dagenais v. C.B.C., [1994] S.C.R. 835; C.B.C. v. New Brunswick (A.G.), [1996] 3 S.C.R. 480; R. v. Mentuck, [2001] 3 S.C.R. 442; R. v. O.N.E., [2001] 3 S.C.R. 478; Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41. The reformulated test requires that:
(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
(b) the salutary effects of the restriction outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.
[11] While all restrictions on public access to information should be subject to similar scrutiny, some may be more difficult to justify than others. For example, a publication ban restricts the media=s ability to publish the impugned information, but does not affect a person=s ability to physically come to view the file. A sealing order, on the other hand, ensures that no eyes will see the impugned information. In that sense, a sealing order is more restrictive than a publication ban. Restrictions on public access exist along a continuum; the task of the Court is to determine where on the continuum the proper balance is reached.
[12] That task is challenging where, as here, all parties to the litigation support the application for a sealing order. Consent of the parties is not, and has never been, a proper consideration in such an application: see Scott v. Scott, [1913] A.C. 417 at 436 (H.L.). Often the parties will have an interest in keeping their matters private, but that does not trump the importance of the presumption of open justice. Further, a judge has no discretion to
2003 ABQB 794 (CanLII)4
order a restriction on public access based on his or her personal view of decency or morality: see Scott v. Scott,
supra at 435.
[13] Further, while counsel has not raised the arguments, it is necessary nonetheless that I take into consideration all interests, including the constitutional imperatives of an open justice system and freedom of expression and of media. The Supreme Court in R. v. Mentuck, supra at para. 38, stated: AIn some cases, however, most notably when there is no party or intervener present to argue the interests of the press and the public to free expression, the trial judge must take account of these interests without the benefit of argument.@
Sealing Order
[14] I turn to the first branch of the test outlined above. Is a sealing order necessary to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk? Clearly, the risk faced here is to the minor=s emotional health. No other risk has been identified by the Church. This Court=s common law jurisdiction to restrict access to a court file must not be used in order to part icipate in a judicial white-wash.
[15] I do find that there is a serious risk to the minor in this case. Victims of sexual abuse, particularly minors, have suffered a great deal and do not need to have their suffering made public. The evidence before me indicates that the minor=s emotional health would be at risk if any information identifying her as a victim of sexual abuse were released.
[16] That does not, however, mean that all information can be restricted. I must, in this part of the test, consider whether reasonable alternatives are available, and restrict the ban as far as possible without sacrificing the prevention of the risk.
[17] I find that a sealing order is not the least restrictive means available to prevent the risk to the minor. It is vital that the minor not be identified, but that goal can be accomplished without sealing the entire court file. For example, a publication ban on the file would ensure that the minor is not identified by the media. Further, it may be possible to achieve the legitimate objective of protecting the minor=s identity by simply employing a pseudonym, and preventing publication of her name or other identifying features.
[18] As the proposed sealing order has failed on the first branch of the test, it is unnecessary to determine whether the salutary effects of a sealing order are proportional to its deleterious effects on the justice system.
Total Publication Ban
[19] Having determined that a sealing order is not available under the common law test, I turn to consider whether a total publication ban would protect the interests of justice while avoiding the risk to the minor.
[20] A publication ban is, in theory, less restrictive than a sealing order. It ensures that any party that has an interest in the litigation can examine the court file, but disallows the dissemination of it to the public. In
2003 ABQB 794 (CanLII)5
practical terms, however, a publication ban can be tantamount to a sealing order. The vast majority of Can adians receive information about the justice system through the print and broadcast media. As the Supreme Court stated in Edmonton Journal v. Alberta (A.G.), [1989] 2 S.C.R. 1326 at para. 10: A[T]he press plays a fundamentally important role. It is exceedingly difficult for many, if not most, people to attend a court trial. ... It is only through the press that most individuals can really learn of what is transpiring in the courts. ... Practica lly speaking, this information can only be obtained from the newspapers or other media.@ A publication ban may, therefore, have the same practical effect as a sealing order C that is, ensuring that the public never learns about any aspect of the litigation.
[21] I conclude that a total publication ban is not the least restrictive means available to avoid the risk to the minor. It would doubtlessly protect the reputations of the tortfeasor and the Church, but those are not, in my view, legitimate concerns.
[22] Although it is not necessary to do so, I find that the deleterious effects of a total publication ban outweigh the salutary effects. The administration of justice demands that the public have access to such matters. It is fundamentally important that incidents of sexual abuse are reported and acknowledged, especially when they involve community institutions whose members are in positions of trust. To issue a total publication ban in this case would, in my view, be participating in an inappropriate cover-up, and would perpetuate the myth that matters of sexual abuse should be kept under wraps or ignored. The effect of such a message on the justice system would be unfortunate. For these reasons, I find that a total publication ban would not, in the balance, be beneficial.
Partial Publication Ban
[23] Clearly, any total restriction on public access to this file is unnecessary in light of the risk to the minor. I turn now to less restrictive alternatives that would permit the greatest possible public access while ensuring that the risk to the minor is avoided. Courts must be creative in fashioning orders that respond to both the needs of the applicant and the public. For example, a partial publication ban, along with the use of pseudonyms in court documents, may be better suited to the particular circumstances of this case. The scope of the order should be tied to the legitimate objective of the restriction. Here, the legitimate objective is to ensure that the minor=s identity is not made public. An order that achieves that objective without restricting other information is appropriate.
[24] An appropriate order would, in my view, allow for unfettered public access to the file, subject to a condition that:
No identifying feature of the minor be published or disseminated in any way, including a) the minor=s name,
b) the names of the minor=s family members,
c) the minor=s age or birthday,
d) the minor=s grade in school, or
e) any other information that would tend to identify the minor.
2003 ABQB 794 (CanLII)6
[25] Such a restriction makes good policy sense. In criminal proceedings with similar facts, the identity of the complainant is protected, while the balance of the file remains open: see Criminal Code, R.S.C. 1985, s. 486(3). The protection of a complainant/victim=s identity is a concern that, in these circumstances, displaces the presumption of open justice.
[26] It is necessary, however, to examine whether such an order would comport with the two-part Supreme Court test. First, as stated above, I find that there is a real and substantial risk to the administration of justice if the minor is identified in these circumstances. The evidence before me clearly establishes that a serio us risk to the minor exists. I am satisfied that justice cannot be done without restricting the public=s access to the identity of the minor.
[27] An order restricting the dissemination of any identifying features will allow the media to report about the nature of the order, and to effectively report to their audiences what kinds of events are occurring in their communities and in the judicial system. The public has a legitimate interest in events leading up to the settlement, except the identity of the minor. This type of order is minimally restrictive.
[28] The second branch of the test requires that the order=s salutary effects not be outweighed by its deleterious effects. The salutary effects of a partial publication ban are tangible: the minor=s identity will be protected, and the risk to her emotional health would be severely reduced. A partial ban would also ensure that the maximum amount of information is available to the public and the media. Pressing public policy concerns about sexual abuse in religious institutions can be addressed, instead of ignored.
[29] The deleterious effects of a partial publication ban are not, in my view, compelling. There is the danger that the minor will be identified indirectly, by naming, for example, the tortfeasor or Church. That danger, in my view, is not great. The incident occurred almost a decade ago in a fair-sized city. It is unlikely that the facts of the case C absent the identifying features set out above C would point to a specific individual or family. In the balance, therefore, I find that the salutary effects of a partial publication ban outweigh its deleterious effects.
DISPOSITION
[30] I conclude that a partial publication ban, in the form outlined above, satisfies the two-part test enunciated by the Supreme Court. I have attempted to restrict the order as far as possible without sacrificing the prevention of the risk.
[31] The application for the order to confirm the settlement is allowed. The application for a sealing order is denied for the reasons articulated above. However, an order for a partial publication ban will issue on the terms stated above.
[32] As this application was made without notice, I should conclude with the stipulation that if any interested party wishes to apply for a variation of this order, it may do so.
2003 ABQB 794 (CanLII)7 DATED at Edmonton, Alberta this 18th day of September, 2003.
HEARD on the 28th day of August, 2003.
_________________________
C.J.C.Q.B.A.
2003 ABQB 794 (CanLII)
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