By
Dean Jobb

In courthouses in Toronto, Woodstock, Kenora, Cornwall and countless other Ontario cities, journalists are routinely denied easy access to case files and exhibits based on outdated precedents and flawed interpretations of the law.

The culprit is a set of access policies for court clerks the province’s Ministry of the Attorney General introduced in 2006, ostensibly “to enhance public access to court proceedings.”

In reality, these rules ignore a string of Supreme Court of Canada precedents upholding the media’s right to report on court proceedings. And they make a mockery of the centuries-old principle of open justice.

While the policy acknowledges that “most court documents are publicly accessible,” journalists must ask a judge’s permission to view exhibits entered as evidence during a trial.

Similar restrictions on access to exhibits are in place in other provinces, but the Ontario policy goes a disturbing step further. If a journalist asks to see a criminal case file, clerks must ensure there’s no publication ban on the identity of a victim of sexual assault or a witness. If there is, the entire file is “not accessible to the public without judicial direction.”

So journalists who need to consult a file or an exhibit to make sure their story is accurate face a bureaucratic roadblock – and the possibility of being forced to make a formal application to a judge.

“You have to go through hoops – very time consuming and expensive hoops – in a lot of cases,” says Tracey Tyler, the Toronto Star’s legal affairs reporter.

Tyler has been in the business for more than two decades – long enough to remember when a reporter who wanted to review an exhibit during a trial simply approached the court clerk during a recess.

Then along came the Supreme Court of Canada’s 1991 ruling in Vickery v. Nova Scotia Supreme Court (Prothonotary), which found that courts are the custodian of exhibits and have the power to regulate access.

Based on that precedent, Ontario – and several other provinces, including Nova Scotia and British Columbia – require journalists to ask the presiding judge’s permission to view or copy exhibits. The media outlet will likely have to notify any affected parties – in case there are privacy or other concerns – and ask for a hearing and a ruling, a process that could take days. So much for meeting today’s deadline for filing copy.

And all this to see a document produced as evidence in open court.

Media law experts dismiss the process as unworkable and an affront to the Charter right to freedom of the press.

“Vickery is out of step, and the policies and practices and training of court staff should reflect the broader understanding of the important role the press plays and the important role of open courts,” says David Paciocco, who teaches constitutional and criminal law at the University of Ottawa.

The Charter was not argued in Vickery, he notes, and Supreme Court rulings since 1991 have limited when documents can be sealed and publication of information can be banned.

In Alberta, by contrast, the party seeking to restrict access to an exhibit must apply for a court order restricting access.

Alan Shanoff, a former counsel to the Sun Media newspaper chain who teaches media law in the journalism program at Toronto’s Humber College, says publicly filed exhibits should be “freely accessible to the media unless there’s a court order to the contrary.”

The same should hold true for files subject to a publication ban. “If you have a publication ban on the name of an individual,” says Paciocco, “it’s not fitting to keep the entire file under wraps.”

In Nova Scotia, journalists and members of the public have full access to such files. “It’s up to the person accessing the file to comply with the publication ban,” says Christine Mosher, the province’s executive director of court services.

A spokesman says Ontario’s Ministry of the Attorney General is aware of the media’s concerns and is reviewing its policy on withholding files subject to a ban. So it’s possible this unjustifiable restriction will soon disappear.

The ministry recently relented on an equally frustrating policy that sealed dockets in youth court cases, making it tough for reporters to locate and cover hearings. Case lists are now posted outside courtrooms to indicate when a youth case is being heard and the charges involved. To comply with the Youth Criminal Justice Act ban on identifying young offenders, those facing charges are identified only by their initials.

In the meantime, Tyler has joined forces with Toronto media lawyer Tony Wong to expose Ontario’s court-access problems. In January they circulated an electronic newsletter, The Justice Reporter – a compilation of access horror stories from journalists across the province – to the email inboxes of Ontario judges and ministry officials.

As the complaints rolled in, even an old hand like Tyler was surprised at the scope of the problem. She’s planning a follow-up issue that will rate the media-friendliness of Ontario courthouses and explore access problems in other provinces.

Let’s hope the pressure convinces Ontario and other jurisdictions that it’s time to bring their access policies in line with the Charter.

Dean Jobb, an assistant professor of journalism at the University of King’s College in Halifax, is author of Media Law for Canadian Journalists.