Prosecutors in the spotlight
Crown attorneys’ media rules walk the line between informing the public and preserving the right to fair trial. So what can prosecutors tell journalists – and the public – about court cases? By Dean Jobb.
By Dean Jobb
A decade ago journalists waiting outside Saskatchewan courtrooms for a comment from a Crown attorney were usually out of luck. Daryl Rayner, the province’s director of prosecutors, says his lawyers – like their counterparts in most provinces at the time – avoided reporters’ questions about law or procedure, what had just happened in court, or how the case would unfold in the days ahead.
“Most prosecutors were really quite hesitant to discuss matters with the media, and often the media were somewhat frustrated because they were not getting very basic information that they were seeking,” Rayner recalls. Crowns were equally frustrated by what they saw as distorted news coverage. “You pick up the paper the next day on the case you’re handling, and you look at it and you say, ‘Where did they get this from? This isn’t what took place.’ There was a view that we weren’t getting our point across.”
To address the problem, Saskatchewan’s Public Prosecutions Division and prosecuting agencies across the country have developed written guidelines setting out what Crown attorneys can say for public consumption. The policies vary, with some offering general advice (avoid statements that could prejudice a case) and others providing specific guidance (suggested answers to common media inquiries). The intent, however, is the same – to better inform the public and to make Crowns more accountable to the people they serve.
Times have certainly changed. In the 1970s Toronto Sun columnist Alan Anderson complained of Crown attorneys who offered a terse “no comment” to a straightforward request to see documents filed with the court. Such brush-offs have become rare. “In our society today, the ‘no comment’ phrase has become synonymous with ‘I’m guilty, I’ve done something wrong and now I’m trying to cover it up’,” notes Chris Hansen, director of communications for Nova Scotia’s Public Prosecution Service. “Openness and accessibility to the media just makes good sense.”
But the Crown’s assertion of its duty to communicate with the public marks a departure from the traditional view that counsel only make public statements within the four walls of a courtroom. Some observers fear that more Crowns fielding more questions outside the courtroom will only invite more responses from defence counsel, greasing the slippery slope toward trial by media. Others say it’s high time prosecutors spoke up to offset the pronouncements of defence lawyers who feel less constrained when they comment to reporters. Given the insatiable appetite of the media and the public for news about cases and legal issues, it’s a debate that’s not about to go away.
There’s a price to be paid for silence, as Nova Scotia’s Crown attorneys learned the hard way. The province’s prosecution service came under withering media fire over several high-profile cases in the late 1990s. Two judges of the Supreme Court of Canada condemned the Crown’s pursuit of homicide charges against the operators of the Westray coal mine, where an explosion killed 26 workers. A first-degree murder charge against a Halifax doctor did not make it past a preliminary hearing. Toronto lawyer Edward Greenspan was loudly portraying former premier Gerald Regan as the victim of a Crown and police effort to bury his client under an avalanche of allegations of sexual misconduct, many of them trivial.
When retired Quebec judge Fred Kaufman completed an independent review of the troubled service in June 1999, he concluded that media and judicial criticism had created “an atmosphere of public mistrust” and left Nova Scotia Crowns feeling like “a group under siege.” In an age when “public acts must be transparent,” he found that the service had “mismanaged” public relations and there was “no clear policy” on what Crown attorneys could say to the media.
The service’s first step toward greater openness was to rescind a three-year-old policy that was widely viewed as a gag order on front-line Crowns. Instead of citing a long list of what must not be said, the new policy invites prosecutors to view media inquiries as “opportunities to speak to Nova Scotians.” Crowns should not make statements that could prejudice a case, reveal their strategy, violate a publication ban or be interpreted as arguing their case in the media. Nor should they reveal the existence of police investigations or comment on whether a verdict or finding might be appealed. Those exceptions aside, the policy states, “the public has a legitimate interest in hearing the Crown’s side in cases currently before the courts” and prosecutors are “encouraged to respond to media inquiries about cases in which they are involved.”
When Chris Hansen took over as communications director in January 2000, she introduced a system to track media contacts and ensure reporters’ questions were being answered. She was floored to discover that the province’s 86 Crowns were fielding an average of a dozen inquiries a day; she suspects only politicians face greater media scrutiny as they go about their duties. “The Crown attorneys are ultimately responsible to the people that pay their salaries, the taxpayers,” says Hansen. “It’s prudent, it’s appropriate and it’s just plain old common sense that you get out there and explain, in layman’s terms, why you’re making the decisions you’re making on the public’s behalf.” Every Crown attorney has received training and major decisions are now explained at press conferences.
Justice Canada’s Federal Prosecution Service has undergone a similar sea change in its dealings with the media. A seven-year-old media relations policy, part of the service’s deskbook for staff prosecutors and Crown agents, was overhauled in June 2000. “It’s much more responsive to the needs of the media,” says Robert Frater, senior general counsel for the service’s criminal law branch in Ottawa, who helped draft the new guidelines. “The previous one was much less detailed and basically said unless you were a departmental spokesperson, you really weren’t responsible for communicating with the media. Whereas this one empowers individual prosecutors to speak to the media and says, basically, that if you get a reasonable request you should deal with it in a reasonable fashion.”
The eight-page policy, posted on Justice Canada’s website, urges Crowns to provide journalists with “timely, complete and accurate information.” A section entitled “Guiding Principles” reminds prosecutors to stick to the facts and avoid offering personal opinions on the merits of a case or the wisdom of specific laws or government policies. “The goal is to foster understanding, not to create sensation,” it advises. Counsel are directed not to reveal privileged information, advice offered to investigators or the federal attorney general, or whether an accused has entered into plea negotiations or is likely to plead guilty.
Like the Nova Scotia policy, the overriding goals are education and accountability. “We view it as a matter of increasing public confidence in the administration of justice,” notes Frater. “We are wielding enormous power, because we’re conducting prosecutions which can result in deprivation of liberty. There are often challenges to the use of our power in that regard, and we’re trying to convey to the public that we are going about it in a very principled way.”
In Regina, Daryl Rayner credits Richard Quinney, Saskatchewan’s executive director of public prosecutions, as the driving forced behind introducing guidelines and media training in the early 1990s. “We wanted prosecutors to become a little bit more comfortable with dealing with the media, but at the same time we wanted to insure they realized the limitations they had, that it just couldn’t be freewheeling,” says Rayner.
Saskatchewan’s five-page policy tells Crowns to bear in mind that, when they speak in public, they are seen as representing their department and the justice system as a whole. While prosecutors are warned never to reveal information to the media before it is introduced in court, they can provide a “factual synopsis” of the status of their case when they emerge from the courtroom. The policy even offers tips on handling specific questions: “If the media asks for your opinion, a comment such as ‘it is the Crown’s job to present the evidence, the court must weigh the evidence,’ can be effective in answering the question by reminding the audience what the prosecutor’s job is during the trial.”
Across the country, prosecution agencies take similar approaches to media inquiries. Crowns are forbidden to discuss police investigations or the possibility of charges being filed. They must not comment on an accused person’s character or criminal record, the credibility of witnesses, the merits of a judge’s or jury’s verdict, or the strength of the Crown or defence case. Questions about Crown policies or the shortcomings of the criminal law are to be referred to superiors or to the agency’s communications officer.
In British Columbia, the Crown Counsel Act specially mandates prosecutors to “provide liaison with the media and affected members of the public on all matters respecting approval and conduct of prosecutions of offences or related appeals.” B.C. has had a written policy permitting Crowns to speak to reporters since 1986. The Criminal Justice Branch of the Ministry of the Attorney General went a step further in 1998 and created a position that appears to be unique in Canada – a Crown attorney assigned to deal with media inquiries.
“We decided that a Crown counsel should be speaking for the Crown counsel,” explains Geoffrey Gaul, who holds the post of communications counsel. “I’m in a position to know what I’m talking about. It also provides a level of credibility.” Gaul, who’s based in Victoria, fields up to 15 calls a day from reporters while juggling his own appeal work and a half-dozen trials. Journalists regularly touch base for updates as cases progress through the court system and he’s the point man for high-profile cases like the Air India bombing prosecution.
Front-line Crowns “can speak to the media on questions of fact about a case that they are dealing with,” says Gaul – basic stuff like the status of the case, the date of the next court appearance, and how long a proceeding is expected to last. Opinions and posturing are offside. “We don’t get into, ‘We have DNA evidence that links the accused to the murder. We have the smoking gun that links the accused to the robbery’,” he explains. Crowns who are too busy to deal with the media, or feel uncomfortable in the spotlight, are advised to refer calls to him. “They just can’t ignore the media request. They are to touch base with me and then I will respond to the inquiry. Either way the media should get an answer. The answer they want? Maybe not, but they should get an answer.”
There’s nothing startling in the restrictions on what prosecutors can and can’t say to the media. Law society codes of ethics require all lawyers to help the media and through it, the public, to understand how the justice system works; they also recognize that circumstances may arise when counsel are duty-bound to speak in the public forum on their clients’ behalf. But there are limits – Ontario’s rule 6.06, for instance, forbids lawyers from conveying to the media any information they know will have a “substantial likelihood of materially prejudicing a party’s right to a fair trial or hearing.” And as the Supreme Court of Canada recently made clear in Krieger v. Law Society of Alberta, 2002 S.C.C. 65, Crown attorneys can be disciplined for misconduct not related to the exercise of prosecutorial discretion.
Crown guidelines tend to be more specific and detailed than ethical codes, reflecting the prosecutor’s special duty of fairness. David M. Brown of the Toronto firm Stikeman Elliott, who canvassed the state of lawyer-media relations for a 1999 article published in the Canadian Bar Review, says additional restrictions on Crown statements are appropriate. “There is a higher level of responsibility placed on them, and so whatever rules apply to lawyers generally, there’s an even higher degree of responsibility or obligation placed on Crown attorneys, especially when dealing with the media.”[node:ad]
Mary Nethery, director of criminal law policy for Ontario’s Ministry of the Attorney General, agrees that Crowns carry extra baggage when they speak to reporters. “The Crown’s responsible for the broader public interest and we have duties to victims, witnesses, the public at large and the courts, and a duty to ensure that justice is done in individual cases,” she says. “Trials are not elections, they’re not held in the court of public opinion, they’re not popularity contests …. The goal is to have Crowns who make considered, thoughtful comments, which are consistent with our impartial minister of justice role, when they are speaking to the press.”
There are other reasons why Crowns should be cautious when discussing their cases in the media. A Crown attorney would not be pursuing charges unless he or she believed there was a reasonable prospect of obtaining a conviction. Given this built-in bias, “how can they make a statement to the public that’s not fraught with risks?” asks Patrick Duncan, president of Nova Scotia’s Criminal Lawyers Association. And since there’s no defence disclosure, he adds, prosecutors are not in possession of all the facts until late in the game. “They’re in a very untenable position in terms of making any absolute pronouncements to the public, I think, until the trial is over.”
But prosecutors and defence lawyers alike are under increasing media pressure to talk about their cases outside the courtroom. With cameras and tape recorders barred from virtually all proceedings, television and radio reporters need sound bites from counsel in order to report what happened in court. Newspaper reporters on the court beat are often expected to monitor several cases at once, so they too may have to rely on information gleaned from scrums and interviews at the courtroom door. Gavin MacKenzie, author of Lawyers and Ethics: Professional Responsibility and Discipline, sees nothing wrong with the practice. “If all the lawyer is doing is repeating what has been said in court, the triers of fact won’t be hearing anything they haven’t already heard in court,” reasons MacKenzie, who practices with the Toronto firm Heenan Blaikie LLP.
David Brown, in contrast, adheres to the traditional view that it’s “inappropriate” to brief the media on what’s been said in court. On a practical level, he notes, “whatever you say isn’t going to be identical to what you said inside, it’s going to be an embellishment, a paraphrase.” And when the recap comes from a Crown attorney, the public may get the wrong message. “You’re leaving the impression the accused can be prosecuted outside of the courtroom,” he argues. “I think it’s fundamentally unfair to an accused to have to respond not only to the case that’s being presented against him in court, but to other allegations or arguments that are being made against him outside of court.”
The guidelines for Ontario’s 700 Crown attorneys, drafted in 1993, authorize Crowns to explain court procedures, clarify issues a reporter did not understand, or provide “a brief outline” of what was said in court. But further elaboration may be “unwise,” it cautions, as the Crown attorney has no control over how such comments play out in the media. “We don’t want to have our comments taken out of context or have them misconstrued,” notes Nethery. She shares Brown’s concerns about public perception. “If we start making our submissions on the courtroom steps, I suppose that some people might argue that we’re trying to improperly influence the court or compromising our position of trust or independence.”
When a Crown attorney does make comments outside the courtroom, it’s often in response to something an accused’s counsel has said. As the guidelines for Saskatchewan prosecutors politely phrase it, “defence counsel recognize the media as a useful tool in advocating for the interests of their clients in the ‘court of public opinion’.” While Ontario’s policy urges caution in most media dealings, it states that “defence counsel are not permitted to engage in unfair or misleading criticism or commentary about cases before the courts. Nothing in this guideline should be construed as preventing Crown Counsel from responding by way of correction to false or misleading information being circulated in the media.”
Gavin MacKenzie believes the Crown has a right to set the record straight. “If the defence publicly criticizes the police and the Crown, it would seem to me that would justify the Crown responding with accurate information.” Justice Canada’s Robert Frater agrees. “If it’s a situation where it might affect the public’s confidence in the administration of justice, it’s entirely proper for a Crown to take steps to remedy that.” In British Columbia, though, any response to criticism of the Crown’s handling of a live case is unlikely to go beyond a “generic” statement of the prosecution’s role or policies, says Geoffrey Gaul. “We do not enter into debates with anyone, whether it’s a journalist or defence counsel, regarding a case that’s before the court. We don’t try the case through the media.”
Nova Scotia provides an example of a high-profile case fought for the hearts and minds of the public. Predictably, media coverage was intense as former premier Gerald Regan was prosecuted on sex-related charges involving more than a dozen young women dating to the 1950s. With a year-long preliminary hearing subject to publication bans on the evidence, the day’s news invariably featured the allegations and potshots Crown and defence traded in and out of court. Edward Greenspan’s relentless attacks – setting the stage for a defence motion to stay all charges as an abuse of process – often goaded Crown attorneys to fire back.
The scrap ended when Associate Chief Justice Michael MacDonald ruled on media requests to allow coverage of pre-trial hearings. In an October 1997 decision (Re “The Chronicle-Herald” et al and The Queen [Indexed as R. v. Regan], 124 C.C.C. (3d) 77), the judge banned publication of evidence or submissions alleging systemic abuse on the part of the Crown, police, the accused or defence counsel. “If the parties through counsel, or otherwise, continue to criticize each other out of court, they will do so at their own peril,” he warned, dangling the threat of a contempt citation to end the “reciprocating allegations of impropriety “that could taint the jury.” There may be reason to criticize the opposition in court, there should be no reason to (do) so out of court.” (A jury later acquitted Regan of the most serious allegations of rape and attempted rape and the Crown withdrew all remaining charges).
Perhaps emboldened by that ruling, judges in two other Nova Scotia cases went a step farther and prohibited counsel from speaking to the media. At pre-trial hearings in a sex abuse case in March 1999, Justice Heather Robertson issued a terse decree: “No interviews by counsel to press to follow proceedings in courtroom.” The following year Justice David Gruchy slapped a no-interview order on counsel involved in a politically charged wrongful dismissal suit; he backed down a few days later in the face of media criticism and counsel’s joint request that the order be rescinded.
Such sweeping gag orders are not only rare, they’re out-of-step with current judicial thinking. It has become common for judges – the most tight-lipped players in the justice system – to make pronouncements at public forums; some are even fielding calls from reporters. But Chief Justice Patrick LeSage of the Ontario Superior Court recently made it clear that the bench draws a line between public education and public advocacy. “Explain, if necessary, inform the media what your case is, but don’t plead with the media. That, I can assure you, is an absolute turn-off to judges,” he told government lawyers at a Canadian Bar Association panel discussion last summer. LeSage, a former prosecutor, urged Crown lawyers to “use discretion” and to avoid revealing their arguments to the media days in advance of a court hearing. Counsel are free to comment at the courtroom door on the arguments they’re about to make, he noted, and he endorsed the practice of fellow panelist Roslyn Levine, a federal lawyer who often distributes copies of a brief synopsis of her factums to help reporters grasp the essence of the Crown’s argument.
There may be situations when counsel can go much farther in the name of free speech, even when an individual’s reputation is at stake. In 2002 the Nova Scotia Court of Appeal overturned a Halifax police officer’s $240,000 defamation award, saying two lawyers enjoyed the protection of qualified privilege at a press conference when they alleged their clients, three young black girls, were victims of racially motivated strip searches. Justice Elizabeth Roscoe, writing for the 2-1 majority in Campbell v. Jones, 2002 NSCA 128, held that counsel may have an ethical duty to “cry out” in the public forum when rights are violated. “A lawyer faced with a patent injustice, such as the violation of her clients’ Charter rights by law enforcement officers, has a substantial and compelling duty to ensure such injustice is remedied in an effective and timely manner.”
Crown counsel could find themselves responding to more public statements from an emboldened defence bar. Following the majority’s logic in Campbell v. Jones, prosecutors should be shielded from defamation suits when they defend the police or themselves against allegations of misconduct, says David Brown. “But I don’t think you could go the one step further and say the majority’s reasons would allow the Crown to call press conferences and make allegations against people whom they suggest have broken the law,” he notes. “There’s an element of the one-way street there.”
The most recent jurisdiction to ease restrictions on Crown comment to the media is Newfoundland and Labrador. Prosecutors on The Rock may have a half-hour jump on the rest of Canada, but until early last year their media relations were behind the times. Del Atwood, who prosecuted in western Newfoundland for 11 years before joining Nova Scotia’s Public Prosecution Service in 2002, says the policy was blunt: “Crown Attorneys shall not comment to the media on matters that are the subject of the prosecution – that’s pre-trial, during trial and post-trial.” Forget repeating arguments for the TV cameras, clarifying legal issues, explaining prosecutorial decisions or educating the public.
The result, Atwood claims, was an impression that Crowns could not be trusted to speak to the media or, worse, could not be trusted at all. “The defence lawyer is having free rein to express his views, and yet what do media followers see of the Crown? They see the Crown attorney ducking out of court and essentially saying, ‘no comment’ …. It leaves the public with the perception that maybe what the defence lawyer is saying is right.” The result, he says, was “a real imbalance” in media coverage and an open invitation for defence counsel to “spout off” without fear of contradiction.
Newfoundland’s new policy says Crowns should provide explanations and factual information but, like other provinces, draws the line at offering comments or opinions about what has occurred. A quarter of the province’s 40 Crowns have received training in how to deal with the media. Tom Mills, who took over as director of public prosecutions two years ago, says there was a recognition that the old policy was not working. “There’s been a growing concern that we need to provide more on-the-record co-operation with the media, to make sure that we’re at least getting some objective information into the hands of journalists.”
And that may be as far as any prosecuting agency can go. “Whether they decide to report it or not,” Mills adds, “is beyond our control.”
Dean Jobb, an assistant professor of journalism at the University of King’s College, is author of Media Law for Canadian Journalists, published by Emond Montgomery Publications (www.emp.ca/books/093-4.html).
This article originally appeared in Canadian Lawyer magazine.