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The Justice Reporter

“The administration of justice thrives on ex-posure to light - and withers under a cloud of secrecy.”- Justice Morris FishSupreme Court of Can-ada

(Toronto Star News-papers v. Ontario, 2005)

Issues Involving Journalism and the Law - Vol. 1, Winter 2009

Canadian journalists have a power-ful friend in the law. The media’s

right to report on court proceedings is constitutionally entrenched and judges often speak strongly about the importance of open justice.

But on the ground, it’s often a vastly different story. Journalists are rou-tinely denied access to court files, exhibits and even basic information about where a trial is taking place. Just last month, information about young offender matters disappeared from court lists in Toronto.

Welcome to The Justice Reporter. This online journal attempts to catalogue these problems and change policies that thwart the media’s ability to in-form the public about its justice sys-tem.

In this issue, we examine the experi-ences of journalists from around On-tario, including Kurtis Elsner, a repor-ter with the Alliston Herald, who was denied access to court documents

that would explain why a teenager charged with murder was, just weeks before, released on bail. And Aimee Pianosi, editor of the Napanee Guide, who had to fight for access to the file from the criminal case involving for-mer NHL agent David Frost after court staff turned her away.

We also have a paper, “ Muzzling the Messenger,” written exclusively for The Justice Reporter by Professor David Paciocco, a constitutional and criminal law expert at the University of Ottawa. Professor Paciocco ana-lyzes polices of Ontario’s Ministry of the Attorney General, which prevent journalists from obtaining informa-tion about cases. His conclusion: The policies do not conform to constitu-tional principles.

Rounding out the package is “Keeping the Courts Public,” by media lawyer Tony Wong. Tony offers tips for any re-porter fighting attempts to seal docu-ments, ban publication of evidence or exclude the media from court.

Media Shut OutCourthouse barriers prevent Ontario repor-ters from doing their jobs. Our province-wide tour starts on page 2

Muzzling the Messenger

Would Ontario govern-ment policies muz-zling the media hold up under the Charter? Professor David Pacioc-co delivers his verdict on Page 7

Help! I need a lawyerA judge is consid-ering a publication ban and you’re not sure what to do? Media lawyer Tony Wong has some tips on page 12.

In This Issue

A Light on Courthouse Secrecy

Toronto Star photo by Bernard Weil.

Winter 2009 The Justice Reporter

For reporters, it’s often case closed“Anytime I want to see anything … I can’t”

Notebook, pen, tape recorder, video camera. They’re a reporter’s standard arsenal. But journalists cov-ering courts often have to bring extra baggage: a lawyer.

Just ask Carla Garrett, a reporter for the Woodstock Sentinel-Review.

Garrett showed up at the courthouse counter a few months ago looking for basic information -

the nature of charges laid against two local citizens, who were already the subject of a case the paper was following.

Garrett couldn’t get the information. The reason? A

publication ban had been imposed in the case - not on the entire file, simply on the complainant’s iden-tity. Yet court employees treated the ban as though it were a sealing order on the complete contents of the file.

The paper’s lawyer managed to find out what the new charges were after speaking with a Crown attorney.

But should it have to come to this?

Garrett isn’t alone. Journalists across Ontario rou-tinely encounter roadblocks in attempting to gain access to information filed in our public court sys-tem. Behind many of the problems are policies of Ontario’s attorney general’s ministry – the same min-istry that’s vowed to improve media access to the courts.

These policies prevent journalists from viewing court exhibits without a judge’s order. They are also be-ing used to deny reporters access to court files from cases in which publication bans have been imposed.

“That’s kind of the root of everything,” said Garrett. “Anytime I want to see anything with a publication ban, I can’t.”

There are no immediate plans to change policies re-stricting access to court exhibits and court files from cases involving publication bans will remain in place, a ministry spokesperson said.

Last month, however, the ministry asked its media-justice liaison committee to review courthouse prac-tises for releasing information about young offender cases. This was done after all references to youth court matters disappeared from court lists in Toron-to - the result of a glitch with new computer soft-ware, the ministry said.

But as the following examples make clear, the prob-lem has also been happening outside Toronto, for some time.

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Carla Garrett. Woodstock-Sentinel Review photo


These aren’t the only barriers faced by reporters. Sometimes they can’t even get transcripts.

~Court staff in Kenora have refused to provide in-

formation about hearing dates in cases involv-ing young offenders, reports Lloyd Mack, managing editor of the Kenora Daily Miner and News and the Lake of the Woods Enterprise. Court staff have also denied access to documents in cases involving pub-lication bans.

~Craig Campbell, a reporter with the Dundas Star

News, wanted to see the “informations” - founda-tional charging documents - from two cases at Ham-ilton’s John Sopinka Courthouse, but was denied ac-cess by counter staff because publication bans had been imposed in the cases. Campbell said he emailed a Crown attorney for help, but the prosecutor did not respond.

~Last month, as an experiment, the Toronto Star’s

Peter Small wrote to the attorney-general’s ministry seeking information about the case of a 13-year-old student at the National Ballet School, who had been charged in Dec. 2007 with sexually-assaulting fellow students. Small wanted to know if the matter had been concluded and, if so, the disposition. If not, he wanted information about the next court date. Small was writing on behalf of himself and court reporters at the National Post, Toronto Sun and City TV.

A ministry spokesperson emailed back to say the ministry’s interpretation of the Youth Criminal Jus-tice Act prohibits it from giving out any information about the disposition of young offender matters, in-cluding future court dates.

~CBC reporter Dave Seglins couldn’t get a tran-

script of a bail hearing from a case involving a Toronto police officer charged in Windsor. The clerk and court reporter cited a publication ban as the reason for denying access to the material. Publication bans are routinely treated as sealing orders, Seglins said. Court staff in Kitchener also refused him access to an unsealed search warrant. He eventually saw the material - but only after an Dave Seglins. CBC photo

official in the attorney-general’s ministry inter-vened.

While covering another case involving Toronto drug squad officers charged with fraud and theft,

Seglins was denied access to material the Crown filed as part of its bid to have defence lawyers removed from the case. The Crown claimed he wasn’t entitled to see the information because it hadn’t been filed with the court in the form of an exhibit. The CBC and other media had to hire a lawyer to fight for ac-cess. They eventually obtained an order granting access, only to encounter another problem. But the time the judge had ruled in their favour, the material was under another court’s jurisdiction and the media had to re-launch its application. Access was finally granted, but under strict conditions: Reporters had to review the material under the supervision of court staff and had to keep it locked in their desks, with the understanding nothing could be disclosed with-out court approval.

~In another incident arising out of the Toronto police

drug squad story, the CBC and Toronto Sun waged a battle all the way to the Supreme Court of Canada to unseal a search warrant the force had executed on one of its own officers, who had been suspected of cocaine trafficking. (The warrant included names of other officers who had been suspected of the same



crime, but were never charged and ultimately pro-moted). The media won its case at the Ontario Court of Appeal and, just last fall, the Supreme Court dis-missed an application by Toronto police to appeal further. Despite the victory in the courts, reporters still had trouble getting the material. Court staff in-sisted the media obtain a new order from the Superi-or Court judge who originally heard the case.

~Media lawyer Tony

Wong went to the Uni-versity Ave. courthouse to look up a file from a sex-ual assault case at the Uni-versity Ave. Shortly after he returned to his office, the phone rang. It was a member of the court staff, asking Wong to destroy the notes he’d made. Ac-cording to the caller, this was necessary because a publication ban had been imposed in the case (but only on the complainant’s identity) and he should not have been given ac-cess to the file.

~Before the case involv-

ing former NHL agent David Frost went to trial in Napanee last fall, Aimee Pianosi, editor of the Napa-nee Guide, was denied access to the court file. Frost was charged with sexual exploitation and the names of key figures in the case, including alleged victims, were covered by a publication ban. Court staff relied on that ban to restrict access to the entire file. Pianosi wanted to complain to a court manager, but staff wouldn’t pro-vide her with a name, telling her instead to return to court the following Tuesday. That’s when she found herself before a judge, making a pitch to see the file. Pianosi was permitted to read through the file during a court recess, while sitting at a counsel table in the

courtroom, with an Ontario Provincial Police officer standing nearby. The newspaper wanted to see the file to verify the accuracy of information posted on a Facebook page about Frost.

~Matthew Talbot, a reporter with the Vankleek Hill

Review, covers courts in L’Orignal, a small town near Ottawa. Whether he’s been trying to see a court

file or simply a docket, Talbot said he’s encoun-tered a seemingly solid wall of secrecy.

“I have gone to the court-house and have had to speak with at least three different people before being allowed to look at the files,” he said. Once, court employees went through the documents to ensure they contained nothing “incriminating.” Talbot’s publisher, Lou-ise Sproule, said her staff have run into problems trying to confirm basic case details by phone. “I fear the sort of barriers we’d come up against if we were looking for any-thing more serious than documents that, essen-tially, amount to time-tables,” Sproule said.

~Roger Belgrave, a staff

writer with the Bramp-ton Guardian, waited

nearly a year for access to a criminal file in Peel. Bel-grave had been covering the story of a Brampton-area teacher who was before a professional disciplinary panel, accused of inappropriately touching students. Belgrave had also learned the man had also been charged criminally. After the panel found against the teacher, Belgrave applied for access to his criminal court files, which spanned an eight-year period, from

Matthew Talbot. Vankleek Hill Review photo



1997 to 2005. Nine months after making his request, Belgrave still hadn’t been given access to the docu-ments - “for what was going to be a news story.” He’d been phoning the courthouse regularly, only to be told his request was being “processed.” Then, he was told his request had been “lost.” At the suggestion of court staff, Belgrave faxed in another request - this time marked “urgent.” A month later, he went to the courthouse in person. He was told his request was nowhere to be found.

~Lindsey Cole, who covers courts for Peterborough

This Week, wanted to keep track of hearing dates for several cases the paper had been following. Rath-er than phoning the court office and asking staff about the cases, Cole went to the counter and asked to see dockets for the weeks ahead. But her request was refused. (One reason courts have been reluctant to make this information available in advance is to prevent “judge-shopping” by lawyers). Cole says on another occasion, she asked staff at the courthouse to explain the meaning of a term on a court docu-ment, but a clerk refused, saying it wasn’t her job to provide “a law lesson.”

~Court dockets are a vital source of information, in-

cluding the names of the accused, charges faced and the courtroom where the case is being heard. But reporters at the Northern Times - TheWeekender-L’Horizon in Kapuskasing have also been denied ac-cess to these documents, says managing editor Mark Gentili.

Kurtis Elsner, who covers the police beat for the Al-liston Herald, thought the public might have some questions about the case of a Thornhill teenager who’d been charged with murder in British Colum-bia. Only three months earlier, the youth had been involved in a police chase with officers from the Not-tawasaga O.P.P. Elsner thought the public might rea-sonably ask why the teen had been released on bail and whether a bench warrant had been issued after he’d fail to show up for a recent court appearance. He headed to the courthouse to check.

But a court employee, Elsner said, advised him she couldn’t release the information, including any docu-ments relating to the teen’s bail hearing. Police also

refused to answer his questions. “If I were the family of the teen who was killed. I would have some ques-tions as to why (the accused) was free,” Elsner said. “Doesn’t look like anybody is willing to answer them, though.”

~Elsner’s boss, Catherine Haller, general manager

of the Alliston Herald, says her paper gave up try-ing to cover court on a regular basis. The justice sys-tem had changed so much - becoming bigger, more complex and “openly hostile” to journalists - that without two full-time reporters assigned to the two courthouses that now serve their readership area, the paper could not do the job effectively or fairly, she says.

“At one time, we had our own small courthouse in Al-liston. It was wonderful. We knew the court officers, Crowns and form the most part, judges, and they knew us. We also had total confidence that we were covering all our local cases. Any cases that had to go to a higher court were easy to track and follow. As our court closed, other changes started to take place in the system; dockets were no longer posted in the courthouses, court clerks declined to give us any in-formation at all and were in fact openly hostile. And, of course, the most sinister step of all, publication bans - once very rare - became almost stylish.” Court staff often blame freedom of information and privacy laws for their decision to deny access to court files, Haller added.

Since there is no penalty for denying information to reporters - and severe penalties for violating privacy laws - they seem to have decided the best course of action is to release nothing. The default position. “This has spread right through the system,” Haller said.

~After receiving a tip that a local martial arts in-

structor had been convicted of indecent expos-ure, Caledon Enterprise reporter Robyn Wilkinson went to the courthouse to look for the file. But Wil-kinson was denied access to the file on the grounds that a publication ban had been imposed on the com-plainant’s name. Court staff also said they couldn’t reveal whether the man had been convicted and what



sentence, if any, had been imposed. Wilkinson con-tacted York Region Police, who confirmed the man had pleaded guilty. In search of more details, the paper hired a lawyer, but didn’t get very far. The attorney-general’s ministry later advised the paper of its policy denying access to court files in cases in which publication bans have been imposed.

~With the Orangeville courthouse 40 minutes from

the Enterprise newsroom, Wilkinson sometimes tries to confirm court appearances by phone. But Marney Beck, the paper’s editor, says her staff often find themselves in a Catch-22. Courts won’t confirm hearing dates without the full name and birth date of an accused person - details police refuse to provide.

Louie Rosella, a staff reporter with the Mississauga News, has run into problems confirming court

dates, particularly in cases involving young offend-ers, but also in the case of at least one adult - a hit-man accused in the death of boxer Eddie Melo. Con-fusion reigned the day the man pleaded guilty; his case wasn’t listed on any court docket. Rosella has also encountered difficulty gaining access to agreed statements of fact, “which are invaluable to a court reporter” and “only further ensure the accuracy of the story we write.”

~The reluctance of court staff in Peterborough to

provide even basic information such as court dates meant that Kawartha Lakes This Week once missed a sentencing hearing, said Marcus Tully, the paper’s news editor. Another time, a reporter went to the wrong courthouse. Tully said it’s often hard just to reach someone in the court office by phone. Sometimes, messages aren’t returned for days.

~During the trial of a Toronto police officer charged

with assaulting a university professor at an anti-poverty demonstration, Global television reporter Gus Kim was denied access to a videotape that had been played several times for the jury. The Ontario Superior Court judge who presided at the trial felt that broadcasting the tape on the news, while the trial was ongoing, could prejudice the jury. Kim got the tape after the jury acquitted the officer. But the news value was diminished.

And finally, a tale from Orillia, where a case involv-ing alleged fraudsters at Casino Rama was re-

cently heard in the Ontario Court of Justice. Covering the story for CBC, Seglins asked the court clerk for a copy of the agreed statement-of-fact, filed after one of the accused pleaded guilty. The clerk refused to release a copy without instructions from the judge. When the court resumed after a recess, Seglins stood up and asked the judge, who agreed it could be re-leased. But Seglins still couldn’t see the document. When he tried to get a copy after court, the clerk still refused to release it, saying she wanted to speak with the judge again to make sure it was okay.

Seglins also attempted to order transcripts form the same hearing. There is no publication ban in

the case. Still, the court reporter said she wanted to seek instructions form the judge on whether she was free to provide transcripts to the public. Despite all the talk from the attorney general’s office about improving media access to the courts, “ignorance and intransigence” prevail, said Seglins.

~30~

Gus Kim. Global News photo


Muzzling the MessengerCulture and the Open Court Principle

By David M. Paciocco

Too often freedom of the press is undervalued by justice sys-tem participants. The experience of journalists in this province

shows as much. It is far too common for those who try to report on the administration of justice to be denied access to information. The problem extends not only to evidence, but to things as mun-dane as dockets and court schedules.

Frequently, access to justice information is being inhibited because of the state of the law. There are currently a proliferation of privil-ege findings, publication bans, sealing orders, and confiden-tiality orders issued by judicial officers. When the law, includ-ing the Charter, supports those orders no-one can complain. Often, though, access to infor-mation is being denied to jour-nalists, and hence to the public, contrary to the law. At times it is because of the over-exuber-ant decisions of investigators and state agents who too read-ily seek to suppress information in the interests of privacy, or the protection of investigations, or the safeguarding of national se-curity interests. It has become routine, for example, for some police officers to secure sealing orders for all search warrants, and there are justices of the peace who uncritically approve such orders. It is also common for prosecutors to give ready support to police officers who seek to suppress information, or to join reflexively in virtually any request for a publication ban. This is problem enough. What is perhaps more troubling, because it is so easily addressed, is the increasing-ly common experience of journalists being denied access to infor-mation as a result of administrative error or indifference by court staff. While the Attorney General’s “Court Services Division Policies and Procedures on Public Access to Court Files, Documents and Ex-hibits” proclaims the importance of public access to court proceed-

David Paciocco. University of Ottawa photo

Vickery Case is the Root of Government

PolicyAn Ontario government policy that restricts access to court ex-hibits has its roots in a 1991 Su-preme Court of Canada ruling, which stopped CBC producer Claude Vickery from examining tapes from a murder trial. The court did not take the media’s Charter rights into account in deciding the case, a serious shortcoming that makes its value as a legal precedent ques-tionable.

The Background

In Aug. 1986, 73-year-old Bruce Scott was found strangled in his New Glasgow, N.S. apart-ment. Brent Nugent, Scott’s for-mer neighbour, was convicted of second degree murder in 1987, but his conviction was overturned a year later when the Nova Scotia Court of Appeal ruled that an audio tape of his alleged confession and a video tape of his alleged re-enactment of the crime had been obtained involuntarily, in violation of Nu-gent’s right to counsel.

Vickery later sought access to those tapes in conjunction with research he was doing on police use of recording technology. A

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ings, information and dockets, and while it is generally respectful of existing legal standards, it is apparent that systems have not been put in place for training staff in the importance of freedom of the press or for establishing effective disclosure practices.

Any time freedom of the press is disregarded it is troubling and serious. Indeed, it is difficult to exaggerate the importance of free-dom press to the justice system. Freedom of the press enables the practices of courts, and the laws courts administer, to be publi-cized. As Jeremy Bentham once said, “Where there is no publicity, there is no justice.”

The reason for the fast connection between publicity and justice is simple. Secrecy is the shroud that insulates not only tyranny but also indolence, insensitivity, unreasonableness, poor judgement and bad laws. In Bentham’s antiquated prose, “publicity is the keen-est spur to exertion, and the surest of all guards against improbity.” While we in Canada need worry little about tyranny, we are not at all immune from bad laws, bad decisions and bad practices, and bad laws, bad decisions and bad practices can exist only in secret. They cannot survive public exposure in a democracy such as ours. It is freedom of the press that provides the sanitizing light that enables public criticism, and it is public criticism that enables justice.

Even in Bentham’s day, when he spoke so powerfully about it, free-dom of the press was not as important as it is now. He lived in less complex times with closer communities where word could spread by mouth in village squares. Even with the internet, it is unrealistic to think today that what happens in our courts, even when court house doors are open, would become public knowledge without the contribution of professional journalists. Not surprisingly, the Supreme Court of Canada has recognized, time and again, that the press are agents of the public, the proxy for those of us who in the hurly-burly of our day to day affairs cannot visit our courts to at-tend to the administration of justice but who care deeply about it. “It is only through the press that most individuals can really learn what is transpiring in the courts.”

What, then, causes justice administrators, including peace officers, adjudicators and court house staff, to forget, at times, to discharge their constitutional obligation to ensure freedom of the press? I think the answer is simple. In our stable democracy, widely admin-istered by skilled and well intending professionals, we have been able to afford the unwise luxury of taking the quality of our laws and the integrity of our institutions for granted. Freedom of the press, openness and transparency do not have the apparent ur-gency here that they do in undemocratic countries with oppressive regimes. At the same time as we have been lulled into a false sense of security by the high quality of justice we Canadians have been

Nova Scotia court granted access to the material, but the decision was reversed on appeal. The battle continued to the Supreme Court of Canada, which ruled against Vickery in a 6-3 judgment on March 21, 1991. (See Vickery v. Nova Scotia Supreme Court (Prothonotary), 1991 1 S.C.R. 671 http://csc.lexum.umontreal.c a / e n / 1 9 9 1 / 1 9 9 1 r c s 1 -671/1991rcs1-671.html).

Significantly, the court did not consider the case in the context of the media’s constitutional right to report on court proceed-ings, as guaranteed by Sec. 2 (b) of the Charter of Rights and Freedoms. It was a deliberate decision. Since lower courts had not considered the question of whether denying access to the tapes would amount to a viola-tion of the Charter’s freedom of expression guarantee, the Supreme Court refused to allow it to be raised for the first time when it heard the case.

What the Supreme Court Said

Justice William Stevenson, who wrote the majority judgment,



Claude Vickery. CBC photo

http://csc.lexum.umontreal.ca/en/1991/1991rcs1-671/1991rcs1-671.html




blessed with, Canadian society has been inundated with powerful influences that trade on, and promote, secrecy and suppression.

Perhaps the most notorious of those influences is “national secur-ity.” Much ink has been spilled lamenting the fact that, just as truth is the first casualty of war, access to public information is the first victim of national insecurity. The terrorist attacks of 2001 inspired an aura of official secrecy that has impeded public access to justice information; insecurity has not only caused justice officials to seal warrants unnecessarily, it has inspired the creation of closed court proceedings to suppress information and to remove non-citizens from our shores, it has been the genesis for overly-muscled and unprecedented forms of privilege, and it has even supported the search of a journalists office and home. To be sure, national secur-ity claims pose a serious challenge for democratic ideals given that such claims have provided refuge from accountability and dissent for tyrants and human-rights abusers internationally. Tragically, it has even sheltered human rights abuses in traditional rights re-garding cultures such as the United States. Even when they are used with the best of intentions, claims of national security are so intimidating that they cause investigators and prosecutors to de-velop exaggerated and discreditable standards of nondisclosure, and they inspire judges to give deference that is not due, or to adopt troubling “err on the side of suppression” approaches.

In truth, apart from the enervating impact that it has had on our broader cultural commitment to open court practices, national se-curity is a relatively infrequent player in the open court business. More widespread obstacles to access to information are to be found in the proliferation of more mundane provisions and practices and privileges that foreclose access to information. It is ironic that prior to the Charter and its affirmation of a constitutional freedom of the press, it was rare for court documents to be sealed, for testimony to be held secret, or proceedings to be closed. Now the law teems with legislation and jurisprudence that can prevent the transmis-sion of justice information. This kind of paradox – diminishing respect for historical values after they have been constitutional-ized - is easy to observe in Charter jurisprudence more generally. The Charter invites courts to balance competing interests, so when a constitutional claim such as freedom of the press or freedom of expression is made, courts work for “compromises” that invariably sculpt away at the relevant constitutional right. This holds true for the open court principle and for freedom of the press. Even when the balancing that occurs is sage, the practice of striving for bal-ance has the unfortunate side-effect of demonstrating that access to justice information is something that can be abridged. This can have a deflationary effect on our psychological commitment to the general principle. Even as courts tout it with inspirational language, the fortunes of freedom of the press are far from secure; at the

declared courts to be custod-ians of exhibits, fully entitled to inquire into how they will be used and even regulating their use when necessary. Having been acquitted of the crime, Nugent’s privacy rights were a very big issue, with Stevenson finding those rights outweighed the public’s interest in exhib-its found to be inadmissible against Nugent. Allowing mem-bers of the public – represented by the media – to see and hear the tapes during the trial was enough to fulfill the open courts principle, he said, adding that curtailing public access is justi-fied when there’s need to pro-tect an innocent person.

But Justice Peter Cory disagreed. From his perspective, the media, as the public’s representative, should have access to all exhib-its from trials and appeal pro-ceedings. When a conviction is overturned on appeal, it will be difficult for a community to ac-cept, no matter how correct the decision might be in law, Cory reasoned. The controversy will only be magnified if the material upon which the court based its decision isn’t publicly access-ible, he said. Denying access to exhibits is the same as allowing the courts to operate in secret, Cory found, adding there can’t be reasonable public comment or criticism of the justice system unless all aspects of court pro-ceedings are known.

What’s Changed Since Then

Although former Chief Justice Antonio Lamer signed onto Ste-venson’s judgment, three years

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same time as we have become dangerously complacent about the importance of open courts and the publicity of justice information, we have been inundated with politically appealing calls for secrecy and suppression that have created an unfortunate culture of toler-ance for it.

And make no mistake. The fortunes of openness and transparency are less a matter of law than they are a matter of culture. Virtually all of the rules we use to determine access to information require judgment to be made by justice officials. If police officers and judg-es work with an exaggerated sense of national security, or privacy, or an inflated perspective on the need for protecting investigations or investigative techniques, then openness, transparency and pub-licity are the casualties. By the same token, if the Attorney General permits openness, transparency and publicity to become secondary considerations for prosecutors and for administrative court staff, freedom of the press is seriously impaired and weakened, and with it, so too is the quality of justice.

This is not a hypothetical concern. There are signs that an appro-priate cultural commitment to freedom of the press has not been promoted within the civil service. The premium and priority that freedom the press deserves is not seen, for example, in the choice in the Court Services Division policy to take as restrictive a reading as possible of the unfortunate decision in Vickery v Supreme Court (Nova Scotia) (Prothonotory) dealing with access to court exhibits. The Attorney General’s protocol interprets that decision as requir-ing a court application for access to those exhibits even though Vickery was a decision that did not intend to set out guidelines for access. It was a case that was about whether a discretionary decision to deny access should have been interfered with. More importantly, it was a case expressly decided without the benefit of the Charter by a Court that cautioned explicitly that no-one before it had argued the importance of access to ensure judicial account-ability to the law. Vickery is an anomalous decision that should not only be confined on its own terms, but now read in light of the constitutional “necessity” and “minimal impairment” standards that have since been affirmed in R v. Mentuck. The presumption the law makes is one of openness, with those seeking suppression hearing a heavy burden of justification before foreclosing access. The At-torney General’s practice of requiring court applications to enforce disclosure of exhibits is not in keeping with those constitutional standards.

The same can arguably be said about the policy of requiring court applications to be made before court files can be viewed in cases where section 486.4 and 486.5 publication and transmission bans have been ordered. Those bans are not on the files. They are on identifying and transmitting protected names. It is an abdication

later he would write the land-mark decision in the case of Dagenais v. CBC, which put the media’s right to report on court proceedings on an even-footing with an accused person’s right to a fair trial. One right doesn’t necessarily trump the other, Lamer stressed in that 1994 de-cision, explaining that courts must balance both interests on a case-by-case basis.

Canada’s current chief justice, Beverley McLachlin is the only judge from the Vickery case still serving on the court. She sided with Cory in the minority deci-sion.

A line of subsequent Supreme Court rulings further entrenched the media’s right of access to the courts, including access to documents. Out of these cases a new set of rules has emerged. Known as the Dagenais-Mentuck principles, they make clear that courts are presumptively open and that judges must consider all reasonable alternatives be-fore restricting media access to court proceedings. These prin-ciples apply whenever a discre-tionary court order is sought, including publication bans and sealing orders. It’s up to the party seeking to restrict access to prove that making the materi-al publicly available will result in actual harm.



for the Attorney General to pass requests for ac-cess to those files on to overburdened courts at tremendous expense to journalists instead of having staff vet the files and expunge any names or identifiers. The policy of requiring court appli-cations is not minimally impairing and does not conform to Charter standards.

More important, though, is the need to promote a general culture of respect for freedom of the press, both among line prosecutors and court staff. Unfortunately, there is no sign that freedom of the press is a matter of priority for prosecu-tors, and, in the case of court staff, the Policies and Procedures manual gives express priority to meeting schedules and the needs of parties, wit-nesses, interpreters and witnesses, over the con-stitutional right of access to public justice infor-mation. Instead of being presented with a policy that is blandly administrative, those who staff the desks and offices that control court documents should be provided with dedicated training on such basic but crucial matters as the difference between confidentiality or suppression orders and publication bans, and they should be schooled in the importance of freedom of the press. Formal systems should be put in place to ensure effect-ive access to information. After all, freedom of the press is the ultimate delivery vehicle for both democracy and a just and effective administration of justice. The best interests of the administration of justice cannot tolerate practices that effectively muzzle the messenger. Instead, the best interests of the administration of justice that the press re-ceives proactive support.

Professor David Paciocco teaches constitutional and criminal law at the University of Ottawa. He has worked as a defence lawyer and assistant Crown attorney.

The Justice Reporter“Where there is no publicity, there is no justice.” - Jeremy Bentham.

“The open court principle, to put it mildly, is not to be lightly inter-fered with.” – Justices Frank La-cobucci and Louise Arbour. Van-couver Sun (Re) 2004.

“As listeners and readers, mem-bers of the public have a right to information pertaining to public institutions and particularly the courts.” - Justice Peter Cory, Ed-monton Journal v. Alberta (1989)

Useful LinksMinistry of the Attorney General’s policies on access to court documents and exhibits:

http://www.attorneygeneral.jus.gov.on.ca/english/courts/policies%5Fand%5Fprocedures/public%5Faccess/

NEXT ISSUEJudging the CourtsFrom Old City Hall to the Supreme

Court of Canada, we grade the courts on media friendliness.

Read the report cards in the next issue of The Justice Reporter

Coming Spring 2009





Words don’t always come easily to journalists, es-pecially when they’re standing nervously in front of a judge. But many reporters find themselves in this difficult position. Tony Wong offers some help-ful tips.

By Tony Wong

The law in Canada is crystal clear that court proceed-

ings are presumptively public. It is the constitutional right of every member of the public - including the media - to be present in a courtroom, to re-port fully on what transpires,

and to inspect any exhibits that have been filed. Any limit on this constitutional right must either be mandated by statute or justified by the party seek-ing it by satisfying the court that the onerous test for limiting the presumption of openness has been met.

Despite the constitutional presumption of openness, any reporter who has covered the crim-inal courts knows that limits on openness - be they publication bans, sealing orders or orders exclud-ing the public from the courtroom -- are frequently requested and almost as frequently imposed. In most cases, it is open to the media to oppose a request for limits on the presumption of openness. The Supreme Court of Canada has recognized that the media has standing to make submissions to op-pose any such limits.

In most cases, a reporter will prefer to have his or her lawyers attend in court to make the submissions to oppose a limit on openness. However, in some cases, it may not be possible to have the media’s lawyers attend in court. Publication bans are often sought with little or no notice to the media. This does not mean that a reporter should sit idly by while the limit is imposed. With the presumption of openness, the law favours the reporter who op-poses a limit on openness such as a publication ban and creates a heavy onus on the party seeking to obtain such a limit. Bringing this law to the atten-

KEEPING THE COURTS PUBLICtion of the court may be the difference between the granting of a ban and the denial of one. It may be the difference between a complete publication ban and a partial publication ban.

This paper provides reporters with a “script” of what they can say when a request for a publication ban, sealing order or an order excluding the public is made during a hearing that they are covering. This script is by no means a complete summary of the law or a replacement for submissions by a media lawyer. However, in those cases where it is simply not possible to have the lawyers attend, this “script” may be an option to ensure that the court stays open.

~Your Honour/Your Worship:

My name is____________________________________. I am a reporter for_____________________________. I understand that the Crown/accused/victim/wit-ness has made a motion for a publication ban/seal-ing order/order excluding the public and the media from the courtroom.

I am here to cover this trial/application/motion on behalf of__________________________________. The requested order would clearly limit my ability to report on this case. I request a brief adjourn-ment of the motion so that I may consult with my editor and our lawyers to determine whether we will be applying for leave to intervene in the motion and to oppose the request for the order sought.

As you know, in Dagenais v. Canadian Broadcasting Corp. (1994), 94 C.C.C. (3d) 289 (SCC) - the lead-ing case in Canada on publication bans or any simi-lar orders limiting the presumption of open courts --- Chief Justice Lamer noted that on a motion for a publication ban, the court should give standing to the media who seek standing (according to the Criminal Rules) (p. 326). We were not given notice of the motion for the publication ban. As far as I know, no other member of the media was given no-



tice. We seek a brief adjournment.

[If the adjournment request is denied or if the media’s lawyers cannot attend]

SUBMISSIONS OPPOSING PUBLICATION BAN ETC.

There is a common law and constitutional pre-sumption of openness with respect to court pro-ceedings. This presumption has been repeatedly recognized and affirmed by the Supreme Court of Canada. I have provided your Honour with the leading case on openness of courts - Dagenais. I have also given you the recent decision of the Su-preme Court of Canada in Toronto Star Newspapers Ltd. v. Ontario, [2005] S.C.J. No. 41 affirming that the Dagenais principles govern all instances where the court is asked to exercise its discretion to limit the presumption of openness, i.e. publication ban, sealing order etc.

It is now firmly established that an order for a pub-lication ban or any order limiting the presumption of openness is exceptional and should only be granted where the following two-part test can be satisfied by the person seeking the publication ban or other related order:

(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the publication ban out-weigh the deleterious effects on the rights and in-terests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the effi-cacy to the administration of justice. (emphasis in original)

First, what the person seeking the ban must estab-lish is that it is necessary to prevent a serious risk to the proper administration of justice, i.e. com-promise an accused’s right to a fair trial. Specula-tive risks are not enough. What is required is a risk that is proven to be well grounded in evidence. Bald assertions cannot be enough to establish the risk. If it were, then there would be a presumption

of secrecy in Canadian courts rather than a pre-sumption of openness.

Second, even if your Honour is satisfied on the evi-dence that a publication ban is necessary to prevent a serious risk to the proper administration of justice, the applicant must also establish that that there are no effective alternatives to the ban sought that can reasonably prevent this serious risk. Alternatives in-clude an expanded challenges for cause and voir dire during jury selection, a strong judicial direction to the jury to ignore what they have read in the media, an adjournment, sequestering the jury, a change of venue or a publication ban that is narrower in scope or which does not come into effect until a certain time prior to the commencement of trial. Many of these alternatives were recognized by Chief Justice Lamer in Dagenais. The applicant must satisfy this Court that none of these alternatives can reasonably be expected to prevent the risk.

Finally, even if the applicant has established that a publication ban is necessary to prevent a serious risk to the proper administration of justice and even if the applicant establishes that there are no reasonable alternatives to the publication ban sought, the ap-plicant must still prove that the salutary effects (the benefits) of the order sought on the administration of justice outweigh its deleterious effects of freedom of expression and freedom of the press. In other words, whatever the benefits of the ban, they must outweigh the harm that a ban would have on the right of the public to receive information on this case and the harm that a ban would have on public faith, respect and confidence in the administration of justice.

APPLICATION OF LAW TO FACTS

Based on the law as I have summarized above, I sub-mit that the applicant has not satisfied the onus of establishing that a publication ban/sealing order/order excluding the public is justified.

[Here you can apply the law above to the facts of your case]

Sample arguments:

Your Honour, the Crown/accused/witness has failed



to demonstrate that a publication ban is necessary to prevent a serious risk to the proper administra-tion of justice. In particular:

• No evidence has been tendered of the risk. All we have are the bald assertions of counsel. Any risk is based on little more than speculation.

• If the concern is to protect the identity of the vic-tim, then a limited publication ban on the name of the victim should be sufficient. Your Honour should not impose a ban on all of the victim’s evidence.

• Much of the information that the applicant seeks to ban or seal is already public. A ban or sealing order would not do anything to prevent the risk.

• There is no need to seal the file or exclude the public - a ban on publication is sufficient.

• A publication ban is not available to protect pri-vacy, per se. Canadian courts are presumptively public. Privacy may be protected to foster the ad-ministration of justice, i.e. we protect identity of sexual assault complainants to address historic under-reporting. However, if we protect privacy for privacy’s sake, then our open justice system will quickly become a private one.

• For the same reason, a publication ban is not available to protect a person from economic harm.

Further, there is no evidence that alternatives to the order sought would not be effective in preventing the risk.

• Why is a sealing order or order excluding the pub-lic necessary?

• Why can’t the court impose a sunset clause, i.e. permit reporting for a limited time prior to the com-mencement of the trial?

• Why can’t the court prepare a judicial summary of testimony that is to be banned so that the public at least has a sense of what the testimony involved?

• Why can’t the ban be limited to specific informa-tion that is proven to be prejudicial?

• Why not allow the trial judge to deal with potential tainting through expanded challenges for cause?

Finally, any benefits from a ban would be clearly out-weighed by the harms of such a ban on public faith and confidence in the administration of justice.

• This case relates to a matter of significant public interest [explain why there is a public interest in the case]. To limit public access to this case would greatly undermine public faith and confidence in the administration of justice. In contrast, a limit on access would have minimal beneficial effects on the fair trial interests of the accused.

FINAL TIP: BE CONFIDENT. YOU HAVE THE RIGHT TO BE IN THE COURTROOM. YOU HAVE THE RIGHT TO FULLY REPORT ON WHAT HAPPENS.

Tony Wong is a partner at Blake Cassels & Graydon LLP. He practises media law.

The Justice Reporter is a journalist-driven initiative. We welcome your comments. Please contact us at:

Tracey Tyler, Legal Affairs Reporter, Toronto Star - [email protected] 416-869-4440 •1-800-268-9756

Tony Wong, Blake, Cassels and Graydon LLP - [email protected] 416-863-2180

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