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.