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Access to information: law and reality miles apart
By Dean Jobb
March 06 2009 issue

Tracey Tyler
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Imagine a lawyer heading into court to argue a case without being able to read the court file or the documents being entered as evidence.

Now imagine a journalist trying to produce an accurate news story about a case without being allowed to review the file or see the exhibits.

Lawyers get to see the file, of course, but that’s not the case for reporters in many jurisdictions as court officials deny access based on outdated precedents and flawed legal interpretations that critics say undermine the principle of open justice.

There’s a growing chorus of complaint that access to key court documents — informations setting out criminal charges, exhibits tendered during trials, youth court dockets — has become increasingly restrictive, despite a growing body of Charter jurisprudence that demands greater openness. Understaffed court offices and lack of training for front-line officials compound the problem.

“You have to go through hoops — very time-consuming and expensive hoops — in a lot of cases” to get access, complains Tracey Tyler, The Toronto Star’s legal affairs reporter, who has been covering the courts for two decades.

“It’s completely at odds with all of the principles that the courts seem to have been handing down over the last 20, 30 or more years.”

Much of the criticism is aimed at Ontario’s access policy, introduced by the Ministry of the Attorney General in 2006. While it acknowledges “most court documents are publicly accessible,” access to youth dockets is prohibited and journalists must ask a judge’s permission to view exhibits.

Similar restrictions are in place in other provinces, but the Ontario policy goes further. If there’s a publication ban on the identity of a victim of sexual assault or a witness, the entire case file is “not accessible to the public without judicial direction.”

Media law experts say the provisions are overly restrictive and unworkable.
“If you have a publication ban on the name of an individual, it’s not fitting to keep the entire file under wraps,” says David Paciocco, who teaches constitutional and criminal law at the University of Ottawa. “That’s just a misunderstanding of what these orders mean.”

And Alan Shanoff, a Toronto-based legal affairs columnist and former counsel to the Sun Media newspaper chain, says withholding the dockets — ostensibly to comply with the Youth Criminal Justice Act ban on identifying young offenders — makes no legal or practical sense.

“It’s getting so ridiculous that lawyers acting for youths were having difficulty finding out what courtroom the trial was going to take place in,” he notes. “That tells you something’s wrong.”

The ministry relented on withholding dockets in recent weeks, spokesman Brendan Crawley told The Lawyers Weekly. Case lists are now being posted outside courtrooms identifying when youth cases are being heard and the charges involved. To comply with the ban, those facing charges are identified only by their initials.

Ontario officials are also reviewing the restriction on files subject to a publication ban. “We’re aware of the concerns expressed by the media,” Crawley added. “These provisions require thoughtful and careful balancing of considerations, including media and open court principles, the administration of justice and victim privacy concerns.”

In Nova Scotia, in contrast, court staff flag the file when a publication ban applies, but journalists and members of the public have full access to the documents.

“We allow access to the file, then it’s up to the person accessing the file to comply with the publication ban,” says Christine Mosher, that province’s executive director of court services.

Access to exhibits is a thornier issue. Nova Scotia, like Ontario and some other provinces, requires journalists to ask the presiding judge for permission to view or copy exhibits, sometimes triggering notice to affected parties and a formal hearing that may take days to convene.

“It’s time-consuming and costly and it’s not much use for the story you’re going to be writing for the next day,” says Tyler, who remembers when getting access to exhibits was simply a matter of approaching the court clerk during a recess.

The restrictions are based on the Supreme Court of Canada’s ruling in Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] S.C.J. No. 23, which found that courts are the custodian of exhibits and have the power to regulate access.

But Paciocco and Shanoff point out that the Charter right to freedom of the press was not argued in that case. Supreme Court rulings since 1991 have expanded access to the courts while limiting when documents can be sealed and publication of information can be banned.

 “I think that Vickery is out of step and the policies and practices and training of court staff should reflect the broader understanding of the important role the press plays and the important role of open courts,” says Paciocco.

“The rule,” add Shanoff, who teaches media law in the journalism program at Humber College, “ought to be that publicly filed exhibits are freely accessible to the media unless there’s a court order to the contrary.”

That’s the case in Alberta — where it’s up to the party seeking to restrict access to an exhibit to apply for a court order — and in line with the procedure the Supreme Court of Canada created to deal with discretionary publication ban in its landmark Dagenais ruling, three years after Vickery.

Without access to files and exhibits, Tyler says, it’s tough for journalists to produce complete and accurate news reports. “In some cases you can’t tell your story... . There may be references in court to material in the file, but the contents aren’t explained.”

The courts’ stance has also made counsel reluctant to let journalists review their copy of an exhibit, even though they are public documents once entered as evidence. “If it’s a particularly sensitive case, a high-profile case,” Tyler says, “even the most media-friendly lawyers are skittish and they want you to get it from the court.”

Tyler’s frustration prompted her to team up with Toronto media lawyer Tony Wong to draw attention to access problems. In January, they produced The Justice Reporter, an electronic newsletter filled with access horror stories collected from journalists across Ontario.

Access problems were also raised last month when Tyler and other senior journalists met with representatives of the Ontario Court of Appeal to discuss ways to improve relations between the media and the courts.

The newsletter has been circulated to judges and officials of the Ministry of the Attorney General and Tyler hopes future issues will expose access problems in other provinces.

Journalists in New Brunswick will likely have examples. The Fredericton Gleaner reported in 2007 that officials at two courthouses refused to release details of a criminal case that had already been dealt with in open court.

In British Columbia, access to files “is not uniform, and that’s a very bad thing,” reports Vancouver-based media lawyer David Sutherland, who acts for more than 80 community newspapers in the province. While he credits B.C.’s provincial court for “working very hard to be journalist-friendly,” clerks in some courthouses routinely refuse access to public documents and there’s no uniform indexing of search warrant materials.

And at a media law conference in Halifax last fall, Nova Scotia journalists aired a litany of complaints about inconsistent access policies at the province’s courthouses.

Mosher attended the conference and admits it was the first time many of the problems had been brought to her attention. A training program will be launched in the spring, she says, to ensure staff understand the access rules and the media’s rights.

“We absolutely have to provide our staff with the information they need to know how deal with media and public requests, and we have to make sure that they’re doing that in a consistent way across the province,” she said.

“It’s not always easy for them to interpret the rules and judges’ orders and case law... they have to make on-the-spot decisions, so they’re more likely to err on the side of caution.”

Paciocco agrees that training is key. Front-line officials need to understand that the public can only understand and monitor what’s happening in the courts through the media.

Until that message gets through, “you’re going to have well-intentioned people making decisions that are going to frustrate access to information.”

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