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More restrictions on access to court documents

|Written By Shannon Kari

The Ontario Ministry of the Attorney General has expanded a policy to restrict access to public documents, requiring a court order before it will permit a member of the public to look at a criminal information that includes the name of an alleged victim of a sexual offence.

The new policy was disclosed after members of the media in Toronto recently requested a copy of the criminal information of a 42-year-old woman who was charged with “corrupting children” in connection with her 12-year-old daughter.

Toronto police held a news conference to suggest that the mother abused crack and permitted men to have sex with her daughter in exchange for money or drugs (although the mother is not facing a procuring charge).

Six men were also charged with a number of sexual assault and drug possession charges.

Court officials in Toronto refused to let the media look at the bail documents for two of the men who were released, citing a “publication ban.”

A request to look at the criminal information filed against the mother was denied after a court services supervisor consulted with the communications branch of the ministry.

“The ministry’s position is that court documents subject to [s.] 486.4 publication bans are not available to the public without a court order,” said spokesman Brendan Crawley.

Criminal Code s. 486.4 was amended in 2005 and it authorizes a judge in a number of sexual offences to make an order directing that “any information that could identify a complainant or a witness shall not be published in any document or broadcast or transmitted in any way,” noted Crawley.

The inclusion of the word “transmitted,” has led to a ministry policy that effectively seals criminal informations when there is a potential s. 486.4 publication ban, unless approval to view the document has been granted by a judge.

Brian Rogers, a Toronto lawyer who regularly acts for the media, said he did not believe that a court application should be required to access a criminal information.

Rogers was recently added to a 12-member justice-media liaison committee announced in March by Attorney General Michael Bryant. “I will bring this policy to the attention of the committee,” said Rogers. The committee was scheduled to hold its first meeting May 10.

As well as the restrictions on viewing some criminal informations, a broader ministry policy in place since 1993 requires anyone who is not a party to a criminal proceeding to bring an application in court to gain access to any exhibit.

As a result of this policy, many court staff across the province routinely refuse requests to view any material in a criminal file, including written arguments and documents that are not exhibits.

Even when the media make applications simply to view written material, the courts in Ontario have refused access despite clear open court principles set out by the Supreme Court of Canada.

In a high-profile prosecution of six Toronto police officers facing several corruption-related charges, Ontario Court Justice James Blacklock ruled in July 2005 that the media could view only edited versions of written materials filed by the Crown in a removal of counsel motion. The media were also required to sign undertakings before being allowed to view the edited material.

The information in the materials remains subject to a publication ban because the officers are not scheduled to go on trial in Superior Court until this fall or early 2008.

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