A recent decision by an Ontario Superior Court judge to deny access to exhibits in a high-profile murder trial is the latest in a string of rulings interpreting open court principles much more narrowly when there is an application by broadcast media.
Superior Court Justice Edwin Minden denied a request by the CBC and the Global Television Network for access to videotaped police statements in which Daniel Sylvester admitted to killing Alicia Ross.
Sylvester was ultimately convicted of second-degree murder in the death of his Markham, Ont., neighbour, in a trial that attracted widespread media coverage.
The statements, which were played for the jury, were a key piece of evidence in determining whether he was guilty of second-degree murder or manslaughter.
CBC lawyer Daniel Henry cited the Dagenais/Mentuck test set out by the Supreme Court of Canada and the presumption in favour of access.
“The audio-visual dimension in CBC reporting demands access to information in an audio or audio-visual form for effective and efficient transmission of information to its audience,” Henry said in written arguments filed in support of the media application.
“An audio-visual report that is of relatively short duration has the capability of conveying what would take many thousands of words alone to convey, and do so in a more accurate manner,” he added.
The Ministry of the Attorney General brought in Frank Giordano, counsel to the director of Crown operations for the central east region, to oppose the media application.
Giordano suggested the broadcast of the interview tapes, in which Sylvester describes how he killed Ross, would infringe the privacy interests of her family, although no evidence was presented to support this position.
The Crown also invoked the possibility of excerpts of the statements appearing on the internet site YouTube after they had been shown on local television news broadcasts.
Minden found that the open court principle had been satisfied by providing reporters covering the trial with written transcripts of the videotaped statements. The transcripts for the most important admissions by Sylvester were not distributed until the day after they were seen in court, because the judge ruled they could not be given to the media until all of the taped interview had been seen by the jury.
Minden cited a decision by Superior Court Justice Bruce Durno in R v. Canadian Broadcasting Corp., where the media was denied access to a videotaped statement, as authority to decide which “format” an exhibit should be made public.
“I am not aware of any binding authority that holds that the concept of open courts necessarily includes the media’s right to disseminate information to the public, or to the public’s right to receive it, in precisely the same form in which it was produced and presented in the courtroom,” wrote Minden.
Iain MacKinnon, a lawyer at Chitiz Pathak LLP, who used to be in-house counsel at the CBC, said providing transcripts does not satisfy the open court principles set out by the Supreme Court.
“Access must be media neutral. A transcript is of no use to a radio or television reporter,” he said. Releasing only transcripts “defeats the whole purpose of trying to communicate what happened in court,” when there is an audio or video exhibit, said MacKinnon.
That view was echoed by Rick Dearden, an Ottawa-based lawyer at Gowling Lafleur Henderson LLP, who frequently acts for the media.
“The same principles should apply regardless of format,” said Dearden.
He also took issue with the fear of YouTube that is now invoked by parties seeking to deny access.
If there is a right to access then “it should make no difference whatsoever,” whether an exhibit is broadcast on a local newscast or distributed though the internet, said Dearden.
The internet can also be a way for a media outlet to let the public see all of an exhibit if it is posted on its web site, instead of just the excerpt shown in a news report, explained MacKinnon.
Minden cited the fair trial rights of the defendant and suggested it could be “virtually impossible to insulate” the jury from the public reaction if the police statements were broadcast on a television newscast.
“It is a perplexing view of juries,” said MacKinnon. “Judges sometimes treat juries as if they are incapable of making up their own minds based on the evidence.”
MacKinnon suggested that the Supreme Court should be asked to explicitly address the rights of broadcast media because judges are routinely dismissing applications for video or audio exhibits.
In the Supreme Court’s 1989 Edmonton Journal ruling, Justice Peter Cory wrote, “It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression.”
Nearly 20 years later, it is a view that is not always shared by the lower courts.
In Canadian Broadcasting Corp., Durno was critical of applications for access to exhibits.
“While freedom of expression must be protected, the members of the media should seriously consider the impact of their decisions to intervene in the midst of a trial which stops the orderly progress of the trial, keeps jurors, witnesses, accused persons, complainants, and victim’s families waiting,” wrote Durno.
Rulings on broadcast media access to court exhibits
R. v. Sylvester (May 2007)
Superior Court Justice Edwin Minden dismisses a media application for
copies of police interviews with Daniel Sylvester in which he confesses
to killing his neighbour Alicia Ross. The tapes are admissible and
viewed by the jury. Minden finds that the open court principle is
satisfied by providing transcripts to the media. The judge concludes
that Sylvester’s fair trial rights may be infringed if the tape is
shown on local TV newscasts and he also raises concerns about the
excerpts ending up on YouTube.
R. v. Hogg (November 2006)
media seek a copy of an admissible confession videotape in a
controversial aggravated assault case where the Manitoba Court of
Appeal overturns the original conditional sentence. The trial judge
denies access to the tape, suggesting the media is seeking a “photo
opportunity.” The Court of Appeal overturns the ruling, grants access,
and finds the trial judge had no factual foundation to come to his
R. v. Terezakis (April 2006)
Supreme Court Justice Heather Holmes denies an application by
CTVglobemedia Inc. seeking copies of home movies made by Tony
Terezakis, who was convicted by a jury of 11 counts of assault, based
only on the videos. There are no live complainants. The videos show
Terezakis beating people in two Vancouver welfare hotels. Terezakis
admitted to running a drug ring out of the hotels, but said the
assaults were part of a “Jackass” reality-style movie he was making.
Two of the victims testified in support of Terezakis. CTV offered to
make alterations to the tape to obscure images, but Holmes denies
access because she said the victims (who were never identified by
police) are some of society’s most vulnerable people.
R. v. Canadian Broadcasting Corp. (April 2006)
sisters face charges of first-degree murder of their mother in a
judge-alone trial. CBC seeks a copy of an admissible video statement
given by one of the girls to a police agent. Superior Court Justice
Bruce Duncan denies access because media have transcripts. He notes
that courts should avoid “in any way” appearing to “actively assist”
the media. CBC applies for orders in the nature of certiorari to quash
the decision. Superior Court Justice Bruce Durno also rules against
CBC. He finds that, since CBC has offered to distort the images or
sound of the video since the accused are young persons, this would have
the effect of broadcasting misleading information to the public.
R. v. TF, AL, KM (February 2005)
Superior Court Justice David Watt delays hearing media arguments for
nearly five weeks in an application for access to a recorded phone call
involving three defendants accused of killing the 12-year-old younger
brother of one of the defendants, in a high-profile proceeding known as
the “Johnathan trial.” The recorded call is the key Crown evidence,
since the three defendants are talking to a female friend about their
plan to kill the younger brother. Watt hears arguments as the jury
begins deliberations and reserves his ruling. There is no decision
because a mistrial is declared when the court learns that an important
Crown witness may not have testified truthfully. The media does not
seek access at the re-trial.