Attorney General Michael Bryant showed up at a journalism conference on May 24 to collect the Code of Silence Award, which recognized his ministry as the most secretive government department in Canada.
Bryant was given the award last year by the Canadian Association of Journalists for having, by far, the highest fees in Canada for accessing court records. The ministry charged $32 for viewing a civil court file and $2 per page for photocopying.
These fees have meant that vital issues of public interest are not being covered, particularly by reporters working for small media outlets across the province, CAJ past-president Robert Cribb said, before handing Bryant the prize.
“They can’t be. It’s too expensive. It’s too time-consuming. And it’s unreasonable,” said Cribb.
Bryant is the first recipient to show up to collect the award - a plaque featuring a large padlock hanging by a chain. He arrived with promises and announcements about bringing more transparency to the justice system.
The same day, Bryant slashed the fee for viewing court files to $10 in the Court of Appeal and Superior Court of Justice, and reduced the photocopying fee to $1 per page in the Court of Appeal, Superior Court, and Ontario Court.
“We’ve given you the key to unlock the code of silence,” he said.
Bryant also updated reporters on the ministry and judiciary’s work on implementing the recommendations in the report of his panel on justice and the media. The AG established the panel in 2005 as a way for representatives from the media and the justice sector to promote mutual understanding and resolve issues. As a result, a permanent justice and media committee now exists.
A pilot project beginning this summer will see some proceedings in the Court of Appeal streamed live on the court’s web site and archived for 90 days. The ministry will supply DVD copies to journalists twice daily.
“I feel that our justice system is ready for its close-up,” he said.
Reporters during the “town hall” meeting welcomed the changes, and said Bryant has gone further than most of his predecessors.
But they pressed him to quickly resolve ongoing thorns in their side, including not being able to access to court exhibits. Journalists currently can’t access exhibits filed during a trial without obtaining a judge’s order.
Bryant said a new protocol for allowing more access, and for sorting out who will decide what information should be released or held back, is necessary, but will be complicated.
It’s something that the media and justice committee will work on, he said, but added that his hands are currently tied by the 1991 Supreme Court of Canada decision Vickery v. Nova Scotia Supreme Court.
“I can’t control the release of exhibits, because the Supreme Court says I can’t control the release of exhibits,” he said.
“That’s not to say that I can’t sit down with the chief justice and try to get the chief justice to change the policies of the court. That’s not to say that we can’t, in some cases, support journalists in applications for the courts to release documents.”
But CBC lawyer Daniel Henry told the AG subsequent Supreme Court decisions have said restrictions on access or publication should be sorted out in advance of trials through pre-trial proceedings.
Once the presumption exists that information should be accessible unless otherwise decided in advance, media won’t have to embark on the vast majority of their applications, said Henry.
“There’s no reason why your ministry can’t immediately recognize the law as it exists post-Vickery and institute a process whereby restrictions on publication and access to exhibits will only be done in accordance with pre-trial motions.”
Frank Addario, vice president of the Criminal Lawyers’ Association, who did not attend the meeting, said Bryant could issue a policy that says the Crown will support journalists’ applications for access to exhibits except where there is an overriding public interest to the contrary. That would include protection of the identity of children and the protection of the identify of complainants.
And court documents should be free of any charge, he added.
“If the ministry makes it prohibitively expensive for journalists and members of the public to access information, which is temporarily stored with the government, it’s the same as denying access.”
Addario is representing New Democrat MPP Shelley Martel in a legal action launched by the AG after Martel successfully persuaded Ontario’s information and privacy commissioner to order the government to disclose the cost of its court battle against a group of parents who fought for an expensive autism treatment. The ministry wants the commissioner’s decision overturned.
“I think it’s fair to say that the attorney general has not been a champion of freedom of information and government accountability,” said Addario.
And another case, The Criminal Lawyers’ Association v. Ontario (Public Safety and Security), released May 25 by the Court of Appeal, will test the government’s claims of openness. The AG was also named as a respondent in this case.
The court ruled, in a 2-1 decision, that the government cannot rely on a provision in provincial legislation to deny access to information - in this case to an OPP report about a botched murder investigation - without allowing the privacy commissioner to evaluate whether public interest trumps other interests.
Superior Court Justice Stephen Glithero stayed proceedings in 1997 in the first-degree murder retrial of Graham Court and Denis Monaghan. Glithero found their Charter rights had been violated as a result of abusive conduct by state officials involving deliberate non-disclosure, deliberate editing of useful information, and negligent breach of the duty to maintain original evidence.
But, after an OPP investigation into Crown and police conduct, the OPP released only a terse press release stating they found no evidence that officers attempted to destroy of withhold vital evidence, or that information withheld from the defence was done deliberately or with the intent to obstruct justice.
The Criminal Lawyers’ Association wanted to read a 318-page police report and other documents so they could comment publicly on the discrepancies between the two findings. However, the ministry relied on law enforcement and solicitor-client privilege exemptions to a public interest override in the Freedom of Information and Protection of Privacy Act to refuse to hand over the report.
The Court of Appeal eventually ruled that the act, as currently structured, unjustifiably limits the appellant’s right under the Charter of Rights and Freedoms to free expression.