The Right to Know

A case pending before the Ontario courts involves a divorce case between Mary Elizabeth Harriman and her husband (soon to be ex-husband) the notorious ex colonel Russell Williams.  It appears that soon after Williams’ confession he entered into a marriage contract with his wife transferring to his wife property either owned by him or owned jointly by them. The Ottawa Citizen and the CBC and CTV want the document to be disclosed and be available for public scrutiny. Ms. Harriman wants the document to be sealed and argues that she has had enough grief from the press without enduring yet another invasion of her privacy.  To complicate matters further there is a civil suit between Williams and one of his victims in which it is alleged that the marriage contract is a fraudulent preference shielding Williams’ assets from his creditors.  The court has not yet ruled. Who is right?

Normally courts rule in favour of openness.  The public’s right to know often trumps inconvenience and embarrassment of the person trying to suppress the document.  The assumption is that there is some public benefit to disclosure.  These cases usually involve governments who, for reasons of national security or otherwise, refuse to disclose volatile documents.  But why should the public have any interest in what was a private arrangement between Williams and his wife?  If the document has any relevance in a civil suit it will be disclosed to plaintiff’s counsel in the discovery process.  If I choose to give assets to my wife should this matter be publically disclosed and commented on by the press?

The press’s right to know has been enlarged over the past decades.  Governments have participated in this enlargement by passing omnibus freedom of information legislation that gives the public access to certain public documents.  The voracious appetite for news and the endless news cycle of cable stations such as CNN has fed on the expansion of the “right to know’ to the “right to know everything”.  The privacy of both public persona and the individual has suffered. 

Add to this the public’s disregard for its own privacy.  Contributors to Facebook and Twitter are not shy about revealing the most intimate details of their lives.  Acts of rape are transmitted through cell phones.  Teenagers send salacious pictures to their friends only to find out that these communications can go viral on YouTube. This disregard for personal privacy makes the courts less likely to rule in favour of the individual when the right to privacy comes up in civil litigation.  There is almost a presumption biased in favour of disclosure.

The invasion of personal privacy is everywhere.  From security cameras posted on public building that broadcast the image of persons passing by to Google that sends cars through cities in order to photograph cityscapes a person’s right to privacy is invaded every day.  Add to this invasive searches in the name of national security at airports and other transportation services and it becomes apparent that the right to privacy is not only eroding but its erosion is taken as a fact of life by the younger population.

These trends tend to embolden the media.  Who cares if the Williams’ engaged in some “estate planning” after his confession?  If anyone needs to know, really needs to know—such as a creditor—there is a way to make that available to the creditor without making it available to the world.  I hope that the judge sees it my way.

This is the last post for about a week.  Don’t be shy.  Post your comments.

Bernie.