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.

There is a serious and troubling disconnect between the public’s right of access to the courts and the reality on the ground for journalists who try to cover them. Dean Jobb explains this troubling disconnect with examples of recent decisions that reflect his experience as a court reporter.

Nova Scotia erects new barriers as Ontario, B.C. promise better access

Commentary by Dean Jobb

“The administration of justice,” Justice Morris Fish wrote in the Supreme Court of Canada’s ruling in Toronto Star Newspapers Ltd. v. Ontario(2005 SCC 41), “thrives on exposure to light – and withers under a cloud of secrecy.”

His words bear repeating, for the many court officials out there who are still not getting the message. “The administration of justice thrives on exposure to light – and withers under a cloud of secrecy.”

What happens in Canada’s courts is open to public and media scrutiny, and Justice Fish’s pronouncement is one of the more recent in a series of precedents that endorse the long-standing principle that justice must be seen to be done.

But there is a serious and troubling disconnect between the public’s right of access to the courts and the reality on the ground. In many jurisdictions, those 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 Justice Fish’s words.

A case in point: In British Columbia, until earlier this year, court clerks refused to hand over the court file in any case subject to a Criminal Code publication ban. So, for instance, if a journalist asked for the file to verify information not covered by a ban on identifying a victim of sexual assault – such as the full name, age and address of the accused or the next appearance date – the request was denied.

The ban, of course, prevents publication of the victim’s name, not access to the file. Unless a judge has ordered a file to be sealed – and such orders are rare – it remains a public record. B.C.’s policy (which also blocked access to search warrant files where there was no sealing order in place) apparently was devised in the belief that reporters could not be trusted to obey the law and honour the ban.

B.C. scrapped these barriers to access in February, but only after the Victoria Times Colonist published a series of embarrassing articles that exposed how the policies undermined the public’s right to know what happens in the courts.

Lindsay Kines, a Times Colonist reporter who worked on the series, says access has improved. “The one wild card,” he told The Lawyers Weekly, “is training and whether the clerks, who are the gatekeepers to much of the information, are aware of the new rules. But at least we have clear policies to point them to.”

Problem solved? Far from it. Ontario’s Ministry of the Attorney General imposed similar restrictions in 2006 on file access when a publication ban was in place. The ministry rescinded the policy in April 2009 in the face of a media backlash, with Attorney General Chris Bentley acknowledging what the courts have been saying for decades – “the administration of justice is strengthened by being open.”

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TheToronto Star’s long-time legal affairs reporter, Tracey Tyler, says the rule change has opened files previously off-limits due to publication bans. But Ontario reporters continue to complain of being stonewalled when they ask to see court records. “There’s still a cultural problem,” she said in an interview. “It’s almost like everything is done grudgingly” and, too often, “the default position is, ‘No’.”

She cites the government’s “shocking” response to a 2010 Ontario Court of Appeal ruling that courtroom exhibits are presumed to be accessible to the media and public, reversing the practice of requiring a court order for their production. When a team of Star reporters put the ruling to the test, some court officials turned over exhibits while others denied access. A spokesman asked to explain the discrepancy claimed the ruling “does not affect the ministry’s policy on the procedure for seeking access to exhibits, which is by court application.”

“There’s a weird dichotomy,” Tyler says. “We keep getting these decisions (on access) that are really great for the media, and then in practice it doesn’t seem to make much of an impact.”

In Nova Scotia, judges and court officials attending a media law conference in Halifax in 2008 heard an earful from journalists fed up with being denied access to files and basic information about cases. In response, the provincial Justice Department promised more training to ensure courthouse staff understands access rules and the media’s rights.

But in March, apparently without consulting the judiciary or the media, the department introduced a policy that can make it impossible for journalists to see files in criminal cases. To obtain the case number needed to retrieve a file, reporters must provide the accused person’s date of birth or, failing that, the person’s middle name or exact address. Since that’s the kind of information journalists need to check the court file to verify, they may be trapped in a Catch-22.

The policy, Justice Department spokesperson Tara Walsh says, is designed “to provide maximum access to court files while protecting individual privacy and rights and ensuring court staff are able to fulfill requests and complete other duties.”

It “does not limit access” to files, she insists, and courthouse staff “do everything they can to help members of the public and media locate files of interest.” Journalists who routinely cover Nova Scotia courts, however, told The Lawyers Weekly they often leave court offices empty-handed.

What’s most frustrating about roadblocks such as these is their persistence. I encountered similar access barriers, real and imagined, and a “you-can’t-have-that” attitude from the moment I began covering the courts as a young reporter. Almost 30 years later, and despite the Charter’s guarantee of press freedom and precedents like Toronto Star Newspapers Ltd. v. Ontario, expediency and bureaucratic resistance continue to trump the law, the open-court principle and the right of public access to court records.

Court administrators should stop evading their legal responsibilities and heed the words of Justice Fish. They can start by undertaking an immediate review their access policies and practices – ideally with input from judges and journalists – to ensure they conform to the spirit and letter of the law.

(Republished from The Lawyers Weekly, November 4, 2011)

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Dean Jobb is an associate professor of journalism at the University of King’s College in Halifax and author of Media Law for Canadian Journalists (Emond Montgomery Publications, 2011). His website is www.deanjobb.com