The Justice Reporter Issues Involving Journalism and the Law - Vol. 1, Winter 2009 A Light on Courthouse Secrecy

anadian journalists have a power- that would explain why a teenager Cful friend in the law. The media’s charged with murder was, just weeks right to report on court proceedings before, released on bail. And Aimee In This is constitutionally entrenched and Pianosi, editor of the Napanee Guide, judges often speak strongly about who had to fight for access to the file Issue the importance of open justice. from the criminal case involving for- mer NHL agent David Frost after court But on the ground, it’s often a vastly staff turned her away. Media Shut Out different story. Journalists are rou- Courthouse barriers tinely denied access to court files, We also have a paper, “ Muzzling the prevent Ontario repor- exhibits and even basic information Messenger,” written exclusively for ters from doing their about where a trial is taking place. The Justice Reporter by Professor jobs. Our province-wide tour starts on page 2 Just last month, information about David Paciocco, a constitutional and young offender matters disappeared criminal law expert at the University from court lists in Toronto. of Ottawa. Professor Paciocco ana- lyzes polices of Ontario’s Ministry of Muzzling the Welcome to The Justice Reporter. This the Attorney General, which prevent Messenger online journal attempts to catalogue journalists from obtaining informa- Would Ontario govern- these problems and change policies tion about cases. His conclusion: The ment policies muz- that thwart the media’s ability to in- policies do not conform to constitu- zling the media hold form the public about its justice sys- tional principles. up under the Charter? Professor David Pacioc- tem. co delivers his verdict Rounding out the package is “Keeping on Page 7 In this issue, we examine the experi- the Courts Public,” by media lawyer ences of journalists from around On- Tony Wong. Tony offers tips for any re- Help! tario, including Kurtis Elsner, a repor- porter fighting attempts to seal docu- I need a lawyer ter with the Alliston Herald, who was ments, ban publication of evidence or A judge is consid- denied access to court documents exclude the media from court. ering a publication ban and you’re not sure what to do? Media lawyer Tony Wong has some tips on page 12.

“The administration of justice thrives on ex- posure to light - and withers under a cloud of secrecy.” - Justice Morris Fish Supreme Court of Can- ada (Toronto Star News- papers v. Ontario, 2005) Toronto Star photo by Bernard Weil. Winter 2009 The Justice Reporter Page 2 For reporters, it’s often case closed “Anytime I want to see anything … I can’t”

Notebook, pen, tape recorder, video camera. They’re publication ban had been imposed in the case - not a reporter’s standard arsenal. But journalists cov- on the entire file, simply on the complainant’s iden- ering courts often have to bring extra baggage: a tity. Yet court employees treated the ban as though lawyer. it were a sealing order on the complete contents of the file. Just ask Carla Garrett, a reporter for the Woodstock Sentinel-Review. The paper’s lawyer managed to find out what the new charges were after speaking with a Crown attorney.

But should it have to come to this?

Garrett isn’t alone. Journalists across Ontario rou- tinely encounter roadblocks in attempting to gain access to information filed in our public court sys- tem. Behind many of the problems are policies of Ontario’s attorney general’s ministry – the same min- istry that’s vowed to improve media access to the courts.

These policies prevent journalists from viewing court exhibits without a judge’s order. They are also be- ing used to deny reporters access to court files from cases in which publication bans have been imposed.

“That’s kind of the root of everything,” said Garrett. “Anytime I want to see anything with a publication ban, I can’t.”

There are no immediate plans to change policies re- stricting access to court exhibits and court files from cases involving publication bans will remain in place, a ministry spokesperson said.

Last month, however, the ministry asked its media- justice liaison committee to review courthouse prac- tises for releasing information about young offender Carla Garrett. Woodstock-Sentinel Review photo cases. This was done after all references to youth court matters disappeared from court lists in Toron- arrett showed up at the courthouse counter a to - the result of a glitch with new computer soft- Gfew months ago looking for basic information - ware, the ministry said. the nature of charges laid against two local citizens, who were already the subject of a case the paper was But as the following examples make clear, the prob- following. lem has also been happening outside Toronto, for some time. Garrett couldn’t get the information. The reason? A Continued on Next page Winter 2009 The Justice Reporter Page 3 These aren’t the only barriers faced by reporters. official in the attorney-general’s ministry inter- Sometimes they can’t even get transcripts. vened.

~ hile covering another case involving Toronto ourt staff in Kenora have refused to provide in- Wdrug squad officers charged with fraud and theft, Cformation about hearing dates in cases involv- Seglins was denied access to material the Crown filed ing young offenders, reports Lloyd Mack, managing as part of its bid to have defence lawyers removed editor of the Kenora Daily Miner and News and the from the case. The Crown claimed he wasn’t entitled Lake of the Woods Enterprise. Court staff have also to see the information because it hadn’t been filed denied access to documents in cases involving pub- with the court in the form of an exhibit. The CBC lication bans. and other media had to hire a lawyer to fight for ac- cess. They eventually obtained an order granting ~ access, only to encounter another problem. But the raig Campbell, a reporter with the Dundas Star time the judge had ruled in their favour, the material CNews, wanted to see the “informations” - founda- was under another court’s jurisdiction and the media tional charging documents - from two cases at Ham- had to re-launch its application. Access was finally ilton’s John Sopinka Courthouse, but was denied ac- granted, but under strict conditions: Reporters had cess by counter staff because publication bans had to review the material under the supervision of court been imposed in the cases. Campbell said he emailed staff and had to keep it locked in their desks, with a Crown attorney for help, but the prosecutor did not the understanding nothing could be disclosed with- respond. out court approval. ~ ~ ast month, as an experiment, the Toronto Star’s n another incident arising out of the Toronto police LPeter Small wrote to the attorney-general’s ministry Idrug squad story, the CBC and Toronto Sun waged seeking information about the case of a 13-year-old a battle all the way to the Supreme Court of Canada student at the National Ballet School, who had been to unseal a search warrant the force had executed on charged in Dec. 2007 with sexually-assaulting fellow one of its own officers, who had been suspected of students. Small wanted to know if the matter had cocaine trafficking. (The warrant included names of been concluded and, if so, the disposition. If not, he other officers who had been suspected of the same wanted information about the next court date. Small Continued on Next page was writing on behalf of himself and court reporters at the National Post, Toronto Sun and City TV.

A ministry spokesperson emailed back to say the ministry’s interpretation of the Youth Criminal Jus- tice Act prohibits it from giving out any information about the disposition of young offender matters, in- cluding future court dates. ~ BC reporter Dave Seglins couldn’t get a tran- Cscript of a bail hearing from a case involving a Toronto police officer charged in Windsor. The clerk and court reporter cited a publication ban as the reason for denying access to the material. Publication bans are routinely treated as sealing orders, Seglins said. Court staff in Kitchener also refused him access to an unsealed search warrant. He eventually saw the material - but only after an Dave Seglins. CBC photo Winter 2009 The Justice Reporter Page 4 crime, but were never charged and ultimately pro- courtroom, with an Ontario Provincial Police officer moted). The media won its case at the Ontario Court standing nearby. The newspaper wanted to see the of Appeal and, just last fall, the Supreme Court dis- file to verify the accuracy of information posted on a missed an application by Toronto police to appeal Facebook page about Frost. further. Despite the victory in the courts, reporters still had trouble getting the material. Court staff in- ~ sisted the media obtain a new order from the Superi- atthew Talbot, a reporter with the Vankleek Hill or Court judge who originally heard the case. MReview, covers courts in L’Orignal, a small town near Ottawa. Whether he’s been trying to see a court ~ file or simply a docket, edia lawyer Tony Talbot said he’s encoun- MWong went to the Uni- tered a seemingly solid versity Ave. courthouse to wall of secrecy. look up a file from a sex- ual assault case at the Uni- “I have gone to the court- versity Ave. Shortly after house and have had to he returned to his office, speak with at least three the phone rang. It was a different people before member of the court staff, being allowed to look at asking Wong to destroy the files,” he said. Once, the notes he’d made. Ac- court employees went cording to the caller, this through the documents was necessary because a to ensure they contained publication ban had been nothing “incriminating.” imposed in the case (but Talbot’s publisher, Lou- only on the complainant’s ise Sproule, said her staff identity) and he should have run into problems not have been given ac- trying to confirm basic cess to the file. case details by phone. “I fear the sort of barriers ~ we’d come up against if efore the case involv- we were looking for any- Bing former NHL agent thing more serious than David Frost went to trial in documents that, essen- Napanee last fall, Aimee tially, amount to time- Pianosi, editor of the Napa- tables,” Sproule said. nee Guide, was denied access to the court file. ~ Frost was charged with oger Belgrave, a staff sexual exploitation and Matthew Talbot. Vankleek Hill Review photo Rwriter with the Bramp- the names of key figures ton Guardian, waited in the case, including alleged victims, were covered nearly a year for access to a criminal file in Peel. Bel- by a publication ban. Court staff relied on that ban grave had been covering the story of a Brampton-area to restrict access to the entire file. Pianosi wanted to teacher who was before a professional disciplinary complain to a court manager, but staff wouldn’t pro- panel, accused of inappropriately touching students. vide her with a name, telling her instead to return to Belgrave had also learned the man had also been court the following Tuesday. That’s when she found charged criminally. After the panel found against the herself before a judge, making a pitch to see the file. teacher, Belgrave applied for access to his criminal Pianosi was permitted to read through the file during court files, which spanned an eight-year period, from a court recess, while sitting at a counsel table in the Continued on Next page Winter 2009 The Justice Reporter Page 5 1997 to 2005. Nine months after making his request, refused to answer his questions. “If I were the family Belgrave still hadn’t been given access to the docu- of the teen who was killed. I would have some ques- ments - “for what was going to be a news story.” He’d tions as to why (the accused) was free,” Elsner said. been phoning the courthouse regularly, only to be “Doesn’t look like anybody is willing to answer them, told his request was being “processed.” Then, he was though.” told his request had been “lost.” At the suggestion of court staff, Belgrave faxed in another request - this ~ time marked “urgent.” A month later, he went to the lsner’s boss, Catherine Haller, general manager courthouse in person. He was told his request was Eof the Alliston Herald, says her paper gave up try- nowhere to be found. ing to cover court on a regular basis. The justice sys- tem had changed so much - becoming bigger, more ~ complex and “openly hostile” to journalists - that indsey Cole, who covers courts for Peterborough without two full-time reporters assigned to the two LThis Week, wanted to keep track of hearing dates courthouses that now serve their readership area, for several cases the paper had been following. Rath- the paper could not do the job effectively or fairly, er than phoning the court office and asking staff she says. about the cases, Cole went to the counter and asked to see dockets for the weeks ahead. But her request “At one time, we had our own small courthouse in Al- was refused. (One reason courts have been reluctant liston. It was wonderful. We knew the court officers, to make this information available in advance is to Crowns and form the most part, judges, and they prevent “judge-shopping” by lawyers). Cole says on knew us. We also had total confidence that we were another occasion, she asked staff at the courthouse covering all our local cases. Any cases that had to go to explain the meaning of a term on a court docu- to a higher court were easy to track and follow. As ment, but a clerk refused, saying it wasn’t her job to our court closed, other changes started to take place provide “a law lesson.” in the system; dockets were no longer posted in the courthouses, court clerks declined to give us any in- ~ formation at all and were in fact openly hostile. And, ourt dockets are a vital source of information, in- of course, the most sinister step of all, publication Ccluding the names of the accused, charges faced bans - once very rare - became almost stylish.” Court and the courtroom where the case is being heard. staff often blame freedom of information and privacy But reporters at the Northern Times - TheWeekender- laws for their decision to deny access to court files, L’Horizon in Kapuskasing have also been denied ac- Haller added. cess to these documents, says managing editor Mark Gentili. Since there is no penalty for denying information to reporters - and severe penalties for violating privacy Kurtis Elsner, who covers the police beat for the Al- laws - they seem to have decided the best course liston Herald, thought the public might have some of action is to release nothing. The default position. questions about the case of a Thornhill teenager “This has spread right through the system,” Haller who’d been charged with murder in British Colum- said. bia. Only three months earlier, the youth had been involved in a police chase with officers from the Not- ~ tawasaga O.P.P. Elsner thought the public might rea- fter receiving a tip that a local martial arts in- sonably ask why the teen had been released on bail Astructor had been convicted of indecent expos- and whether a bench warrant had been issued after ure, Caledon Enterprise reporter Robyn Wilkinson he’d fail to show up for a recent court appearance. went to the courthouse to look for the file. But Wil- He headed to the courthouse to check. kinson was denied access to the file on the grounds that a publication ban had been imposed on the com- But a court employee, Elsner said, advised him she plainant’s name. Court staff also said they couldn’t couldn’t release the information, including any docu- reveal whether the man had been convicted and what ments relating to the teen’s bail hearing. Police also Continued on Next page Winter 2009 The Justice Reporter Page 6 sentence, if any, had been imposed. Wilkinson con- nd finally, a tale from Orillia, where a case involv- tacted York Region Police, who confirmed the man Aing alleged fraudsters at Casino Rama was re- had pleaded guilty. In search of more details, the cently heard in the Ontario Court of Justice. Covering paper hired a lawyer, but didn’t get very far. The the story for CBC, Seglins asked the court clerk for a attorney-general’s ministry later advised the paper copy of the agreed statement-of-fact, filed after one of its policy denying access to court files in cases in of the accused pleaded guilty. The clerk refused to which publication bans have been imposed. release a copy without instructions from the judge. When the court resumed after a recess, Seglins stood ~ up and asked the judge, who agreed it could be re- ith the Orangeville courthouse 40 minutes from leased. But Seglins still couldn’t see the document. Wthe Enterprise newsroom, Wilkinson sometimes When he tried to get a copy after court, the clerk tries to confirm court appearances by phone. But still refused to release it, saying she wanted to speak Marney Beck, the paper’s editor, says her staff often with the judge again to make sure it was okay. find themselves in a Catch-22. Courts won’t confirm hearing dates without the full name and birth date of eglins also attempted to order transcripts form an accused person - details police refuse to provide. Sthe same hearing. There is no publication ban in the case. Still, the court reporter said she wanted ouie Rosella, a staff reporter with the Mississauga to seek instructions form the judge on whether she LNews, has run into problems confirming court was free to provide transcripts to the public. Despite dates, particularly in cases involving young offend- all the talk from the attorney general’s office about ers, but also in the case of at least one adult - a hit- improving media access to the courts, “ignorance man accused in the death of boxer Eddie Melo. Con- and intransigence” prevail, said Seglins. fusion reigned the day the man pleaded guilty; his case wasn’t listed on any court docket. Rosella has ~30~ also encountered difficulty gaining access to agreed statements of fact, “which are invaluable to a court reporter” and “only further ensure the accuracy of the story we write.” ~ he reluctance of court staff in Peterborough to Tprovide even basic information such as court dates meant that Kawartha Lakes This Week once missed a sentencing hearing, said Marcus Tully, the paper’s news editor. Another time, a reporter went to the wrong courthouse. Tully said it’s often hard just to reach someone in the court office by phone. Sometimes, messages aren’t returned for days. ~ uring the trial of a Toronto police officer charged Dwith assaulting a university professor at an anti- poverty demonstration, Global television reporter Gus Kim was denied access to a videotape that had been played several times for the jury. The Ontario Superior Court judge who presided at the trial felt that broadcasting the tape on the news, while the trial was ongoing, could prejudice the jury. Kim got the tape after the jury acquitted the officer. But the news value was diminished. Gus Kim. Global News photo Winter 2009 The Justice Reporter Page 7 Muzzling the Messenger Culture and the Open Court Principle By David M. Paciocco Vickery Case

oo often freedom of the press is undervalued by justice sys- is the Root of Ttem participants. The experience of journalists in this province Government shows as much. It is far too common for those who try to report on the administration of justice to be denied access to information. Policy The problem extends not only to evidence, but to things as mun- An Ontario government policy dane as dockets and court schedules. that restricts access to court ex- hibits has its roots in a 1991 Su- Frequently, access to justice information is being inhibited because preme Court of Canada ruling, of the state of the law. There are currently a proliferation of privil- which stopped CBC producer ege findings, publication bans, Claude Vickery from examining sealing orders, and confiden- tapes from a murder trial. The tiality orders issued by judicial court did not take the media’s officers. When the law, includ- Charter rights into account ing the Charter, supports those in deciding the case, a serious orders no-one can complain. shortcoming that makes its Often, though, access to infor- value as a legal precedent ques- mation is being denied to jour- tionable. nalists, and hence to the public, contrary to the law. At times it is because of the over-exuber- The Background ant decisions of investigators and state agents who too read- In Aug. 1986, 73-year-old Bruce ily seek to suppress information Scott was found strangled in in the interests of privacy, or the his New Glasgow, N.S. apart- protection of investigations, or ment. Brent Nugent, Scott’s for- the safeguarding of national se- mer neighbour, was convicted curity interests. It has become of second degree murder in routine, for example, for some 1987, but his conviction was police officers to secure sealing overturned a year later when orders for all search warrants, David Paciocco. the Nova Scotia Court of Appeal and there are justices of the University of Ottawa photo ruled that an audio tape of his peace who uncritically approve such orders. It is also common for alleged confession and a video prosecutors to give ready support to police officers who seek to tape of his alleged re-enactment suppress information, or to join reflexively in virtually any request of the crime had been obtained for a publication ban. This is problem enough. What is perhaps involuntarily, in violation of Nu- more troubling, because it is so easily addressed, is the increasing- gent’s right to counsel. ly common experience of journalists being denied access to infor- mation as a result of administrative error or indifference by court Vickery later sought access to staff. While the Attorney General’s “Court Services Division Policies those tapes in conjunction with and Procedures on Public Access to Court Files, Documents and Ex- research he was doing on police hibits” proclaims the importance of public access to court proceed- use of recording technology. A Continued on Next page Continued on Next page Winter 2009 The Justice Reporter Page 8 ings, information and dockets, and while it is generally respectful Nova Scotia court granted access of existing legal standards, it is apparent that systems have not to the material, but the decision been put in place for training staff in the importance of freedom of was reversed on appeal. The the press or for establishing effective disclosure practices. battle continued to the Supreme Court of Canada, which ruled Any time freedom of the press is disregarded it is troubling and against Vickery in a 6-3 judgment serious. Indeed, it is difficult to exaggerate the importance of free- on March 21, 1991. (See Vickery dom press to the justice system. Freedom of the press enables the v. Nova Scotia Supreme Court practices of courts, and the laws courts administer, to be publi- (Prothonotary), 1991 1 S.C.R. 671 cized. As Jeremy Bentham once said, “Where there is no publicity, http://csc.lexum.umontreal. there is no justice.” ca/en/1991/1991rcs1- 671/1991rcs1-671.html). The reason for the fast connection between publicity and justice is simple. Secrecy is the shroud that insulates not only tyranny but Significantly, the court did not also indolence, insensitivity, unreasonableness, poor judgement consider the case in the context and bad laws. In Bentham’s antiquated prose, “publicity is the keen- of the media’s constitutional est spur to exertion, and the surest of all guards against improbity.” right to report on court proceed- While we in Canada need worry little about tyranny, we are not at all ings, as guaranteed by Sec. 2 immune from bad laws, bad decisions and bad practices, and bad (b) of the Charter of Rights and laws, bad decisions and bad practices can exist only in secret. They Freedoms. It was a deliberate cannot survive public exposure in a democracy such as ours. It is decision. Since lower courts had freedom of the press that provides the sanitizing light that enables not considered the question of public criticism, and it is public criticism that enables justice. whether denying access to the tapes would amount to a viola- Even in Bentham’s day, when he spoke so powerfully about it, free- tion of the Charter’s freedom dom of the press was not as important as it is now. He lived in less of expression guarantee, the complex times with closer communities where word could spread Supreme Court refused to allow by mouth in village squares. Even with the internet, it is unrealistic it to be raised for the first time to think today that what happens in our courts, even when court when it heard the case. house doors are open, would become public knowledge without the contribution of professional journalists. Not surprisingly, the What the Supreme Court Said Supreme Court of Canada has recognized, time and again, that the press are agents of the public, the proxy for those of us who in the Justice William Stevenson, who hurly-burly of our day to day affairs cannot visit our courts to at- wrote the majority judgment, tend to the administration of justice but who care deeply about it. Continued on Next page “It is only through the press that most individuals can really learn what is transpiring in the courts.”

What, then, causes justice administrators, including peace officers, adjudicators and court house staff, to forget, at times, to discharge their constitutional obligation to ensure freedom of the press? I think the answer is simple. In our stable democracy, widely admin- istered by skilled and well intending professionals, we have been able to afford the unwise luxury of taking the quality of our laws and the integrity of our institutions for granted. Freedom of the press, openness and transparency do not have the apparent ur- gency here that they do in undemocratic countries with oppressive regimes. At the same time as we have been lulled into a false sense of security by the high quality of justice we Canadians have been Continued on Next page Claude Vickery. CBC photo Winter 2009 The Justice Reporter Page 9 blessed with, Canadian society has been inundated with powerful declared courts to be custod- influences that trade on, and promote, secrecy and suppression. ians of exhibits, fully entitled to inquire into how they will be Perhaps the most notorious of those influences is “national secur- used and even regulating their ity.” Much ink has been spilled lamenting the fact that, just as truth use when necessary. Having is the first casualty of war, access to public information is the first been acquitted of the crime, victim of national insecurity. The terrorist attacks of 2001 inspired Nugent’s privacy rights were a an aura of official secrecy that has impeded public access to justice very big issue, with Stevenson information; insecurity has not only caused justice officials to seal finding those rights outweighed warrants unnecessarily, it has inspired the creation of closed court the public’s interest in exhib- proceedings to suppress information and to remove non-citizens its found to be inadmissible from our shores, it has been the genesis for overly-muscled and against Nugent. Allowing mem- unprecedented forms of privilege, and it has even supported the bers of the public – represented search of a journalists office and home. To be sure, national secur- by the media – to see and hear ity claims pose a serious challenge for democratic ideals given that the tapes during the trial was such claims have provided refuge from accountability and dissent enough to fulfill the open courts for tyrants and human-rights abusers internationally. Tragically, it principle, he said, adding that has even sheltered human rights abuses in traditional rights re- curtailing public access is justi- garding cultures such as the United States. Even when they are fied when there’s need to pro- used with the best of intentions, claims of national security are so tect an innocent person. intimidating that they cause investigators and prosecutors to de- velop exaggerated and discreditable standards of nondisclosure, But Justice Peter Cory disagreed. and they inspire judges to give deference that is not due, or to From his perspective, the media, adopt troubling “err on the side of suppression” approaches. as the public’s representative, should have access to all exhib- In truth, apart from the enervating impact that it has had on our its from trials and appeal pro- broader cultural commitment to open court practices, national se- ceedings. When a conviction is curity is a relatively infrequent player in the open court business. overturned on appeal, it will be More widespread obstacles to access to information are to be found difficult for a community to ac- in the proliferation of more mundane provisions and practices and cept, no matter how correct the privileges that foreclose access to information. It is ironic that prior decision might be in law, Cory to the Charter and its affirmation of a constitutional freedom of the reasoned. The controversy will press, it was rare for court documents to be sealed, for testimony only be magnified if the material to be held secret, or proceedings to be closed. Now the law teems upon which the court based its with legislation and jurisprudence that can prevent the transmis- decision isn’t publicly access- sion of justice information. This kind of paradox – diminishing ible, he said. Denying access to respect for historical values after they have been constitutional- exhibits is the same as allowing ized - is easy to observe in Charter jurisprudence more generally. the courts to operate in secret, The Charter invites courts to balance competing interests, so when Cory found, adding there can’t a constitutional claim such as freedom of the press or freedom of be reasonable public comment expression is made, courts work for “compromises” that invariably or criticism of the justice system sculpt away at the relevant constitutional right. This holds true for unless all aspects of court pro- the open court principle and for freedom of the press. Even when ceedings are known. the balancing that occurs is sage, the practice of striving for bal- ance has the unfortunate side-effect of demonstrating that access What’s Changed Since Then to justice information is something that can be abridged. This can have a deflationary effect on our psychological commitment to the Although former Chief Justice general principle. Even as courts tout it with inspirational language, Antonio Lamer signed onto Ste- the fortunes of freedom of the press are far from secure; at the venson’s judgment, three years Continued on Next page Continued on Next page Winter 2009 The Justice Reporter Page 10 same time as we have become dangerously complacent about the later he would write the land- importance of open courts and the publicity of justice information, mark decision in the case of we have been inundated with politically appealing calls for secrecy Dagenais v. CBC, which put the and suppression that have created an unfortunate culture of toler- media’s right to report on court ance for it. proceedings on an even-footing with an accused person’s right And make no mistake. The fortunes of openness and transparency to a fair trial. One right doesn’t are less a matter of law than they are a matter of culture. Virtually necessarily trump the other, all of the rules we use to determine access to information require Lamer stressed in that 1994 de- judgment to be made by justice officials. If police officers and judg- cision, explaining that courts es work with an exaggerated sense of national security, or privacy, must balance both interests on or an inflated perspective on the need for protecting investigations a case-by-case basis. or investigative techniques, then openness, transparency and pub- licity are the casualties. By the same token, if the Attorney General Canada’s current chief justice, permits openness, transparency and publicity to become secondary Beverley McLachlin is the only considerations for prosecutors and for administrative court staff, judge from the Vickery case still freedom of the press is seriously impaired and weakened, and with serving on the court. She sided it, so too is the quality of justice. with Cory in the minority deci- sion. This is not a hypothetical concern. There are signs that an appro- priate cultural commitment to freedom of the press has not been A line of subsequent Supreme promoted within the civil service. The premium and priority that Court rulings further entrenched freedom the press deserves is not seen, for example, in the choice the media’s right of access to in the Court Services Division policy to take as restrictive a reading the courts, including access to as possible of the unfortunate decision in Vickery v Supreme Court documents. Out of these cases (Nova Scotia) (Prothonotory) dealing with access to court exhibits. a new set of rules has emerged. The Attorney General’s protocol interprets that decision as requir- Known as the Dagenais-Mentuck ing a court application for access to those exhibits even though principles, they make clear that Vickery was a decision that did not intend to set out guidelines courts are presumptively open for access. It was a case that was about whether a discretionary and that judges must consider decision to deny access should have been interfered with. More all reasonable alternatives be- importantly, it was a case expressly decided without the benefit of fore restricting media access to the Charter by a Court that cautioned explicitly that no-one before court proceedings. These prin- it had argued the importance of access to ensure judicial account- ciples apply whenever a discre- ability to the law. Vickery is an anomalous decision that should tionary court order is sought, not only be confined on its own terms, but now read in light of the including publication bans and constitutional “necessity” and “minimal impairment” standards that sealing orders. It’s up to the have since been affirmed in R v. Mentuck. The presumption the law party seeking to restrict access makes is one of openness, with those seeking suppression hearing to prove that making the materi- a heavy burden of justification before foreclosing access. The At- al publicly available will result in torney General’s practice of requiring court applications to enforce actual harm. disclosure of exhibits is not in keeping with those constitutional standards.

The same can arguably be said about the policy of requiring court applications to be made before court files can be viewed in cases where section 486.4 and 486.5 publication and transmission bans have been ordered. Those bans are not on the files. They are on identifying and transmitting protected names. It is an abdication Continued on Next page Winter 2009 The Justice Reporter Page 11 for the Attorney General to pass requests for ac- cess to those files on to overburdened courts at tremendous expense to journalists instead of having staff vet the files and expunge any names or identifiers. The policy of requiring court appli- cations is not minimally impairing and does not conform to Charter standards.

More important, though, is the need to promote a general culture of respect for freedom of the press, both among line prosecutors and court staff. Unfortunately, there is no sign that freedom The of the press is a matter of priority for prosecu- tors, and, in the case of court staff, the Policies and Procedures manual gives express priority to Justice meeting schedules and the needs of parties, wit- nesses, interpreters and witnesses, over the con- stitutional right of access to public justice infor- Reporter mation. Instead of being presented with a policy “Where there is no publicity, there that is blandly administrative, those who staff the is no justice.” - Jeremy Bentham. desks and offices that control court documents should be provided with dedicated training on “The open court principle, to put such basic but crucial matters as the difference it mildly, is not to be lightly inter- between confidentiality or suppression orders and fered with.” – Justices Frank La- publication bans, and they should be schooled in cobucci and Louise Arbour. Van- the importance of freedom of the press. Formal couver Sun (Re) 2004. systems should be put in place to ensure effect- ive access to information. After all, freedom of “As listeners and readers, mem- the press is the ultimate delivery vehicle for both bers of the public have a right to democracy and a just and effective administration information pertaining to public of justice. The best interests of the administration institutions and particularly the of justice cannot tolerate practices that effectively courts.” - Justice Peter Cory, Ed- muzzle the messenger. Instead, the best interests monton Journal v. Alberta (1989) of the administration of justice that the press re- ceives proactive support.

Professor David Paciocco teaches constitutional and criminal law at the University of Ottawa. He NEXT ISSUE has worked as a defence lawyer and assistant Crown attorney. Judging the Courts From Old City Hall to the Supreme Court of Canada, we grade the Useful Links courts on media friendliness. Ministry of the Attorney General’s policies on access to court documents and exhibits: Read the report cards in the next issue of The Justice Reporter http://www.attorneygeneral.jus.gov.on.ca/ english/courts/policies%5Fand%5Fprocedures/ Coming Spring 2009 public%5Faccess/ Winter 2009 The Justice Reporter Page 12 KEEPING THE COURTS PUBLIC Words don’t always come easily to journalists, es- tion of the court may be the difference between the pecially when they’re standing nervously in front granting of a ban and the denial of one. It may be of a judge. But many reporters find themselves in the difference between a complete publication ban this difficult position. Tony Wong offers some help- and a partial publication ban. ful tips. This paper provides reporters with a “script” of what By Tony Wong they can say when a request for a publication ban, sealing order or an order excluding the public is he law in Canada is crystal made during a hearing that they are covering. This Tclear that court proceed- script is by no means a complete summary of the ings are presumptively public. law or a replacement for submissions by a media It is the constitutional right of lawyer. However, in those cases where it is simply every member of the public not possible to have the lawyers attend, this “script” - including the media - to be may be an option to ensure that the court stays present in a courtroom, to re- open. port fully on what transpires, and to inspect any exhibits that have been filed. ~ Any limit on this constitutional right must either be mandated by statute or justified by the party seek- Your Honour/Your Worship: ing it by satisfying the court that the onerous test for limiting the presumption of openness has been My name is______. met. I am a reporter for______. I understand that the Crown/accused/victim/wit- Despite the constitutional presumption of ness has made a motion for a publication ban/seal- openness, any reporter who has covered the crim- ing order/order excluding the public and the media inal courts knows that limits on openness - be they from the courtroom. publication bans, sealing orders or orders exclud- ing the public from the courtroom -- are frequently I am here to cover this trial/application/motion requested and almost as frequently imposed. In on behalf of______. most cases, it is open to the media to oppose a The requested order would clearly limit my ability request for limits on the presumption of openness. to report on this case. I request a brief adjourn- The Supreme Court of Canada has recognized that ment of the motion so that I may consult with my the media has standing to make submissions to op- editor and our lawyers to determine whether we will pose any such limits. be applying for leave to intervene in the motion and to oppose the request for the order sought. In most cases, a reporter will prefer to have his or her lawyers attend in court to make the submissions As you know, in Dagenais v. Canadian Broadcasting to oppose a limit on openness. However, in some Corp. (1994), 94 C.C.C. (3d) 289 (SCC) - the lead- cases, it may not be possible to have the media’s ing case in Canada on publication bans or any simi- lawyers attend in court. Publication bans are often lar orders limiting the presumption of open courts sought with little or no notice to the media. This --- Chief Justice Lamer noted that on a motion for does not mean that a reporter should sit idly by a publication ban, the court should give standing while the limit is imposed. With the presumption to the media who seek standing (according to the of openness, the law favours the reporter who op- Criminal Rules) (p. 326). We were not given notice poses a limit on openness such as a publication ban of the motion for the publication ban. As far as I and creates a heavy onus on the party seeking to know, no other member of the media was given no- obtain such a limit. Bringing this law to the atten- Continued on Next page Winter 2009 The Justice Reporter Page 13 tice. We seek a brief adjournment. of secrecy in Canadian courts rather than a pre- sumption of openness. [If the adjournment request is denied or if the media’s lawyers cannot attend] Second, even if your Honour is satisfied on the evi- dence that a publication ban is necessary to prevent SUBMISSIONS OPPOSING a serious risk to the proper administration of justice, PUBLICATION BAN ETC. the applicant must also establish that that there are no effective alternatives to the ban sought that can There is a common law and constitutional pre- reasonably prevent this serious risk. Alternatives in- sumption of openness with respect to court pro- clude an expanded challenges for cause and voir dire ceedings. This presumption has been repeatedly during jury selection, a strong judicial direction to recognized and affirmed by the Supreme Court the jury to ignore what they have read in the media, of Canada. I have provided your Honour with the an adjournment, sequestering the jury, a change of leading case on openness of courts - Dagenais. I venue or a publication ban that is narrower in scope have also given you the recent decision of the Su- or which does not come into effect until a certain preme Court of Canada in Toronto Star Newspapers time prior to the commencement of trial. Many of Ltd. v. Ontario, [2005] S.C.J. No. 41 affirming that these alternatives were recognized by Chief Justice the Dagenais principles govern all instances where Lamer in Dagenais. The applicant must satisfy this the court is asked to exercise its discretion to limit Court that none of these alternatives can reasonably the presumption of openness, i.e. publication ban, be expected to prevent the risk. sealing order etc. Finally, even if the applicant has established that a It is now firmly established that an order for a pub- publication ban is necessary to prevent a serious risk lication ban or any order limiting the presumption to the proper administration of justice and even if of openness is exceptional and should only be the applicant establishes that there are no reasonable granted where the following two-part test can be alternatives to the publication ban sought, the ap- satisfied by the person seeking the publication ban plicant must still prove that the salutary effects (the or other related order: benefits) of the order sought on the administration of justice outweigh its deleterious effects of freedom of (a) such an order is necessary in order to prevent a expression and freedom of the press. In other words, serious risk to the proper administration of justice whatever the benefits of the ban, they must outweigh because reasonably alternative measures will not the harm that a ban would have on the right of the prevent the risk; and public to receive information on this case and the harm that a ban would have on public faith, respect (b) the salutary effects of the publication ban out- and confidence in the administration of justice. weigh the deleterious effects on the rights and in- terests of the parties and the public, including the APPLICATION OF LAW TO FACTS effects on the right to free expression, the right of the accused to a fair and public trial, and the effi- Based on the law as I have summarized above, I sub- cacy to the administration of justice. (emphasis in mit that the applicant has not satisfied the onus of original) establishing that a publication ban/sealing order/ order excluding the public is justified. First, what the person seeking the ban must estab- lish is that it is necessary to prevent a serious risk [Here you can apply the law to the proper administration of justice, i.e. com- above to the facts of your case] promise an accused’s right to a fair trial. Specula- tive risks are not enough. What is required is a Sample arguments: risk that is proven to be well grounded in evidence. Bald assertions cannot be enough to establish the Your Honour, the Crown/accused/witness has failed risk. If it were, then there would be a presumption Continued on Next page Winter 2009 The Justice Reporter Page 14 to demonstrate that a publication ban is necessary • Why is a sealing order or order excluding the pub- to prevent a serious risk to the proper administra- lic necessary? tion of justice. In particular: • Why can’t the court impose a sunset clause, i.e. • No evidence has been tendered of the risk. All we permit reporting for a limited time prior to the com- have are the bald assertions of counsel. Any risk is mencement of the trial? based on little more than speculation. • Why can’t the court prepare a judicial summary of • If the concern is to protect the identity of the vic- testimony that is to be banned so that the public at tim, then a limited publication ban on the name of least has a sense of what the testimony involved? the victim should be sufficient. Your Honour should not impose a ban on all of the victim’s evidence. • Why can’t the ban be limited to specific informa- tion that is proven to be prejudicial? • Much of the information that the applicant seeks to ban or seal is already public. A ban or sealing • Why not allow the trial judge to deal with potential order would not do anything to prevent the risk. tainting through expanded challenges for cause?

• There is no need to seal the file or exclude the Finally, any benefits from a ban would be clearly out- public - a ban on publication is sufficient. weighed by the harms of such a ban on public faith and confidence in the administration of justice. • A publication ban is not available to protect pri- vacy, per se. Canadian courts are presumptively • This case relates to a matter of significant public public. Privacy may be protected to foster the ad- interest [explain why there is a public interest in ministration of justice, i.e. we protect identity of the case]. To limit public access to this case would sexual assault complainants to address historic greatly undermine public faith and confidence in under-reporting. However, if we protect privacy for the administration of justice. In contrast, a limit on privacy’s sake, then our open justice system will access would have minimal beneficial effects on the quickly become a private one. fair trial interests of the accused.

• For the same reason, a publication ban is not FINAL TIP: BE CONFIDENT. YOU HAVE THE RIGHT available to protect a person from economic harm. TO BE IN THE COURTROOM. YOU HAVE THE RIGHT TO FULLY REPORT ON WHAT HAPPENS. Further, there is no evidence that alternatives to the order sought would not be effective in preventing Tony Wong is a partner at Blake Cassels & Graydon the risk. LLP. He practises media law. The Justice Reporter The Justice Reporter is a journalist-driven initiative. We welcome your comments. Please contact us at: Tracey Tyler, Legal Affairs Reporter, Toronto Star - [email protected] 416-869-4440 •1-800-268-9756 Tony Wong, Blake, Cassels and Graydon LLP - [email protected] 416-863-2180 All content, materials, graphics contained within the pages and website of The Justice Reporter are the sole property of the owners. Reproduction of this material in whole or in part is prohibited without written, prior consent of the editors. All rights reserved. The Justice Reporter ©2008