“The administration of justice thrives on exposure to light – and withers under a cloud of secrecy,” Justice Morris Fish of the Supreme Court of Canada wrote in a 2005 ruling upholding the media’s Charter-guaranteed right to gather and report the news.
Yet since 2006, clerks at courthouses across Ontario have cast a “cloud of secrecy” over sexual assaults, extortions and a host of other serious crimes. They refused to allow journalists to see the court file – documents clearly on the public record – if there was a ban on publishing information that could identity the victim or a witness.
The reason? A policy of the provincial Ministry of the Attorney General that deemed such files “not accessible to the public without judicial direction.”
A reporter or citizen seeking access, the policy stated, “must make an application to the court” – an expensive and time-consuming process.
That was the practice until last week, when Attorney General Chris Bentley lifted the restriction and acknowledged “the administration of justice is strengthened by being open.”
If this sounds like a media junkie’s version of insider baseball, consider the impact of a policy that was needless, wrong-headed and blatantly unconstitutional.
The court file is the institutional memory of a case. It contains details of the allegations and the alleged offender, and records every hearing held and decision made during a prosecution.
Journalists use the file to check facts, dates and the spellings of names, and to find additional information about the case. Without it, complete and accurate reporting is difficult.
And without it, the media may not have much of a story. If no journalist was available to attend a hearing – a scenario that’s likely increasing given industry cutbacks – piecing together the information needed for a detailed story might be impossible.
So the policy change is good news not only for reporters who have been scrambling to get information from other, sometimes less reliable sources. It’s also important to the rest of us who rely on the media to tell us what’s happening in the courtroom and whether justice is being done.
The minister’s about-face begs the question: Why was the policy implemented in the first place?
Publication bans to protect the privacy of crime victims and witnesses are an exception to the open-court rule but were never intended to hinder media coverage. Ontario’s policy transformed a defensible ban on specific information into an outrageous order sealing the entire file.
It came about after Parliament added the words “transmitted in any way” to a section of the Criminal Code that prevents information that could identify victims and witnesses from being “published” or “broadcast.”
The amendment was clearly designed to prevent online publication and courts in other provinces from continuing to provide access to files, leaving Ontario out on a very shaky limb.
A ministry spokesman admitted this week the policy reflected “a cautious approach” to access. And Bentley says a review of practices in other provinces convinced Ontario the restriction was unnecessary.
But if the ministry had listened to the journalists and media lawyers who have complained about the policy for more than two years, the problem could have been fixed much sooner.
Freedom of speech and freedom of the press “depend for their vitality on public access to information of public interest,” Justice Fish noted in his ruling. “What goes on in the courts ought therefore to be, and manifestly is, of central concern to Canadians.”
Those should be words of caution to anyone who tinkers with a principle as vital as the openness of the courts.
Dean Jobb is assistant professor of journalism at the University of King’s College
in Halifax and author of Media Law for Canadian Journalists.
This article was originally published in The Toronto Star.
(Image by Mattitude. Used under Creative Commons license.)