Law
There is a serious and troubling disconnect between the principle of open justice and the reality on the ground. Dean Jobb explains that in many jurisdictions, the bureaucrats who oversee court clerks and registrar’s offices have a habit of devising rules and policies that block access to court filings – policies that have little or no basis in law and make a mockery of Supreme Court of Canada precedents.
A Toronto Star investigation into the city’s busy youth court met with resistance from judges and prosecutors, arbitrary publication bans and attempts to block access to the basic records the media needs to cover the justice system. In the words of reporter David Bruser, the paper had to fight to lift the “institutional shroud covering the often-disturbing details of youth crimes from public view.”Read the Star’s Oct. 29 report: “A Secret Court.”
Feb. 28, 2011 -- Under new rules that came into effect today, British Columbia's courts will no longer block access to the court file in cases where a publication ban is in place. Previously, journalists and citizens were barred from reviewing documents filed in sexual assault and other cases, even though other provinces permit access. The new rules also clarify that reporters and members of the public have the right to see search warrant documents unless a judge has ordered the file to be sealed.
The changes come after the Victoria Times-Colonist published a series last year that exposed how outdated policies were hindering access to the province's justice system. Read the Postmedia News story on the changes.
A sweeping publication ban will continue to be imposed on bail hearings, even when suspects won't face a jury trial. The Supreme Court of Canada has upheld a Criminal Code provision that requires judges to ban publication at the suspect's request. While the ban is designed to prevent jurors from hearing information about the suspect or the crime that might be inflammatory or inadmissible at trial, it is routinely imposed in all cases. The ban prohibits publication of all information presented at a bail hearing, including the judge's reasons for granting or denying release. The court turned down media requests to make the ban optional, and overturned a 2009 Ontario ruling that would have limited the ban to allegations of murder and other serious offences that were destined to be heard by a jury.
Read The Globe and Mail and Toronto Star reports on the ruling.
Follow the links to Toronto Star and Globe and Mail editorials criticizing the decision.
Read the court's ruling in Toronto Star Newspapers Ltd. et al. v. Her Majesty the Queen in Right of Canada et al., which challenged bans on bail hearing held in 2006 for the Toronto 18 terrorism suspects. It incorporates the court's ruling on a companion appeal, Canadian Broadcasting Corporation et al. v. Her Majesty the Queen et al., which arose from an Alberta murder case.
The Supreme Court of Canada's decision to uphold a sweeping ban on bail hearings is a loss for the public as well as for journalists, J-Source Law Editor Dean Jobb argues in a commentary in the Toronto Star. By shutting down informed debate over judges’ decisions to grant or deny bail to criminal suspects, the court has squandered an opportunity to enhance public confidence in the justice system.
British Columbia’s attorney general promises sweeping changes to make the province’s courts more open in the wake of a Victoria Times Colonist investigation that exposed inconsistent access practices at courthouse registries. Mike de Jong says an outdated policy that authorizes clerks to withhold an entire file when a publication ban protects a name or other information will be scrapped and new access rules will have a “presumption in favour of releasing information.” Read the Times Colonist report.
The Victoria Times Colonist has published a four-day series exposing glaring inconsistencies in public access to court records at British Columbia courthouses. Some court officials cited a legally flawed, 16-year-old policy similar to one discredited and abandoned in Ontario last year that allows them to withhold files if there is a publication ban on a name or other information. Times Colonist reporters also had difficulty locating and obtaining records of completed police searches. Read the first days stories, with links to follow up articles and editorial comment.
Commentary: "Justice can't exist hidden behind secrecy"
In courthouses in countless Ontario cities, journalists are routinely denied easy access to case files and exhibits because of outdated precedents and flawed interpretations of the law. Dean Jobb makes the case for better access.
Reporting on the Justice System
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