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‘Gut feelings’ often trump open courts

|Written By Shannon Kari

Public access to courtrooms and court records is one of the “hallmarks of a democratic society,” stressed Superior Court Justice David McCombs when he granted a media application to release a 2007 videotaped police interview with Paul Bernardo.

The release of the Paul Bernardo police interview video, seen here on YouTube, is a ‘tiny step’ forward in opening up the courts, says Toronto lawyer Lorne Honickman.

“Unless the press has access to court information and exhibits, they are unable to provide the information to the public,” he stated in the ruling issued on June 10.

McCombs rejected a request by the Crown that DVD copies be destroyed after broadcast and that the media be limited in its right to post the entire interview on its news web sites.

The judge accepted arguments by media lawyer Iain MacKinnon that the internet is a legitimate format for news distribution and there should not be restrictions on access of the interview, which was an exhibit in the retrial of Robert Baltovich, who was acquitted of the murder of Elizabeth Bain.

While internet access and the fear the video could end up on sites such as YouTube are relatively new issues for judges to consider, McCombs was simply applying long-standing open court principles set out by the Supreme Court for more than two decades.

Open courts have been described as a “core value” that is as central to the justice system as other fundamental principles such as the presumption of innocence.  The Supreme Court decisions are far from ambiguous, yet with a few notable exceptions they do not appear to be applied on a consistent basis at the trial court level in Ontario.

As well, the Ministry of the Attorney General has imposed numerous restrictions on access that arguably have made Ontario the least open court system in the country.

“It is difficult, if not impossible to ascertain, why it has been and still is, a titanic struggle in this province, to ensure the open court principle is understood and adhered to,” says Lorne Honickman, a lawyer at McCague Peacock Borlack McInnis & Lloyd LLP, who often acts for the media.

“Gut feelings that it’s just not right to make exhibits accessible continue to rule the day,” notes Honickman. “That is why the release of the Bernardo video is so important. It provides a tiny step forward down the path to the eventual deconstruction of these myths,” he says.

“The experience with the Bernardo video shows that the sky does not fall simply because the media are able to inform the public about what happens in our courts,” says MacKinnon of Chitiz Pathak LLP.

“There may still be legitimate journalistic ethical issues about whether such a video should be broadcast, but on the facts of that case, it should not be a legal issue,” he says.

In less high-profile proceedings, it is common for judges in Ontario to make a passing reference to Dagenais v. Canadian Broadcasting Corp. (a 1994 Supreme Court decision which has been followed by other rulings expanding open court principles) and then find an exemption to the presumption of access to court records.

Discretionary publication bans are routinely imposed without advance notice to the media as is required by law.

The Supreme Court stated in R. v. Mentuck that before imposing a discretionary publication ban there must be a “serious threat” to the administration of justice, which is “well-grounded” in the evidence. Yet courts often find a very low threshold to conclude that this test has been met.

In the trial of the youth in the  “Toronto 18” alleged terror plot, Justice John Sproat granted an application to ban reporting of the names of the adult defendants in their upcoming trial, because it could impact  finding an impartial jury.

“There would be few people in Peel Region who would not themselves, or have family or friends, who ride the Toronto subway and frequent public buildings,” noted Sproat in reference to the “sensational” nature of the allegations.

Sweeping restrictions on access to court documents and exhibits are in place as a result of the ministry’s interpretation of the 1991 Supreme Court ruling in Vickery v. Nova Scotia Supreme Court.

Other provinces, such as Alberta have taken a completely different approach. It is up to the party seeking to restrict access to court exhibits to bring an application. In Ontario, the ministry requires the public to obtain a court order even to view most material, including victim impact statements and exhibit lists in criminal proceedings.

The Alberta approach “has facilitated meaningful and accurate court reporting and has also fostered public confidence in the judicial system,” says Fred Kozak, a lawyer at Reynolds Mirth Richards & Farmer LLP in Edmonton.

The policy means that access issues are “addressed in a principled fashion with little or no disruption to trials,” Kozak explains. “There is no rational basis for saying that the open court principle applies to testimony, but not to exhibits.”

In many provinces, it is an official with the court who deals with media requests for court material. A representative of Ontario Superior Court Chief Justice Heather Smith did not respond to a request for comment about the policies put in place by the ministry.

A year ago, the ministry created a justice-media liaison committee to deal with access issues. It has not released any details about what it is doing and one person on the committee told Law Times that members are not permitted to discuss its work. Ministry spokesman Brendan Crawley, says he asked three committee members and they all declined to speak to Law Times.

In explaining the ministry’s policy, Crawley says the Vickery case and the common law “clearly assert” the judiciary’s role as custodian of exhibits. “The court has an obligation to weigh and balance the principles of openness, protection of privacy and proprietary rights and the fair administration of justice. This can not be achieved by providing presumptive access to all exhibits,” says Crawley.

Honickman says it’s arguable whether Vickery is still the determining case. “Vickery predates Dagenais, Mentuck, Vancouver Sun and the plethora of other judgments that have come from our highest courts, cases which have entrenched the open court principle into the fabric of our Constitution,” he says.

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