Prosecutors in the spotlight

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.