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Open court principle under fire

|Written By By Shannon Kari

Judges in two high-profile criminal proceedings in southern Ontario have rejected the open court principles set out by the Supreme Court of Canada and ruled against media applications for access to exhibits.

Unspecified fears of tampering of a taped telephone call by Internet "bloggers" has also led one media outlet to retain an audio expert to be prepared to testify in an upcoming application for access to a key exhibit in a notorious murder trial.Judges in two high-profile criminal proceedings in southern Ontario have rejected the open court principles set out by the Supreme Court of Canada and ruled against media applications for access to exhibits.

Unspecified fears of tampering of a taped telephone call by Internet "bloggers" has also led one media outlet to retain an audio expert to be prepared to testify in an upcoming application for access to a key exhibit in a notorious murder trial.

The three cases are all recent examples of what media lawyers say they encounter regularly in the lower courts, despite more than two decades of Supreme Court rulings that have repeatedly said the presumption is in favour of public access and open courts.

"The administration of justice thrives on exposure to light and withers under a cloud of secrecy," wrote Justice Morris Fish, in the SCC's Toronto Star Newspapers v. Ontario ruling this summer.

"Public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration," said Fish, in applying the Dagenais/Mentuck test.

Provincial court Justice Bruce Duncan ruled that the "principles of open justice have been fully observed," as he denied the CBC access to audio and videotaped statements made by two teenage sisters on trial in Brampton on charges of murdering their mother.

Duncan, who is hearing the case without a jury, said the Dagenais/Mentuck principles were met because a voir dire on the admissibility of the statements was held in open court. As well, Duncan said the media had access to transcripts of the conversation.

The CBC stressed that it would obscure or mask the features and voices of the defendants to comply with a publication ban on their identities.

"I have considerable doubt that the principle of open justice requires or even applies to the making of such an order," to release copies of the tapes, said Duncan in his November 16 ruling. "To the contrary, I prefer the view that the principles of

neutrality and detachment require that a court avoid in any way appearing to actively assist the media."

However, argued CBC lawyer Iain MacKinnon, "if you are with the electronic media, it doesn't help you that much to have a copy of the transcript."

He noted that courts "appear to get very nervous about handing out audio and video, but not about text. They grant access but not true access to everyone."

Another ruling against full access was issued on Nov. 25 by Ontario Court Justice George Beatty in advance of the preliminary hearing for Toronto police Const. William McCormack Jr. The officer, who is the son of a former Toronto police chief, is facing a number of corruption-related offences.

Jeff Manishen, the special prosecutor retained by the Ministry of the Attorney General, filed more than 460 intercepts with the court earlier this year as exhibits "one" and "two." Only 25 intercepts had been played in open court before the preliminary hearing was postponed until Dec. 5 to permit new counsel to be retained.

The CBC, The Globe and Mail and the Toronto Star all applied for access to the recordings.

The defence opposed granting access. Manishen argued that there should not be access until the recordings were played in court. He also suggested that if the applicants were granted access, they should be required to sign an undertaking not to breach the standard publication ban on evidence at a preliminary hearing.

Beatty found that the intercepts were not actually filed as exhibits, but were "lodged with the court as a matter of convenience." As a result, he ruled that only the 25 intercepts could be released to the media, "subject to editing by the Crown."

The lack of access to court exhibits has continued in another high-profile police prosecution. The Crown and defence were ordered by Justice James Blacklock to jointly edit materials filed in connection with a removal-of-counsel motion, which was eventually withdrawn, in the prosecution of six Toronto drug squad officers.

Media outlets that want a copy of the heavily edited materials before the preliminary hearing next month must sign an undertaking with several restrictions on what can be done with this information. There will not be any copy accessible to the public.

The CBC's MacKinnon observed that in addition to the reluctance of some judges to grant access to exhibits, there appears to be a new hurdle, which he described as the "Internet bogeyman."

The CBC has applied for access to an edited copy of a recorded telephone call that includes the voices of three teenagers charged in the stabbing death of a 12-year-old Toronto boy who can be identified only as "Jonathan."

A re-trial of the defendants was scheduled to begin Dec. 5 and the recorded call is likely to be a key piece of evidence for the Crown.

MacKinnon has agreed that the police or Crown can edit the tape to distort the voices and remove any references to the names of the alleged young offenders.

The defence, however, has raised concerns that if the tape is available on the Internet, a "blogger" could alter the recording to eliminate the distortion. The CBC has retained an audio expert who is prepared to testify that this is virtually impossible.

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