One of the hallmarks of a democratic society is an open court system. So why is there so much secrecy in the criminal and civil justice system?
I’m not speaking about understandable secrecy to protect minors charged with youthful indiscretions or the identity of sex assault victims or police informants.
I’m also not speaking about national security-type cases, although there is far too much secrecy there as well. No, I’m talking about run-of-the-mill cases and the many roadblocks the legal system throws in the way of openness:
• Publication bans are routine - indeed mandatory, when sought by the defence - in bail hearings and preliminary hearings. Surely the public has a need to know the reasons why an accused is released on bail.
In rare cases when an accused does not seek a ban, Crown attorneys seem eager to argue in favour of a discretionary ban. Getting access to exhibits at a preliminary hearing is tortuous even with an undertaking not to publish the exhibit until after the preliminary hearing ban has been lifted.
• Details of pretrial motions before a jury is chosen are banned from publication. Some of these motions take place weeks or months prior to the selection of jurors and often do not involve prejudicial material.
• Names of youths charged with serious offences such as murder and attempted murder can’t be published unless the youth is convicted, receives an adult sentence, and the court is satisfied that publication is warranted.
And why is it that the right to publish a minor victim’s identity depends on the age of the accused? There’s no justification for protecting the identity of a 17-year-old victim or witness when the accused is under 18 while there is no such protection when the accused is 18 or older.
• Material used to get search warrants is sealed, often with little or no justification. Media organizations are often forced to spend large sums to access documents used to obtain warrants.
• Documents detailing criminal charges are difficult to locate and obtain. If the information contains the name of a youth or a sex assault victim the document is likely not available even with names of the youths or victims blocked out.
Some justices of the peace have even banned publication of the names of the adult accuseds in murder cases. When police officer Richard Wills was charged with the murder of Linda Mariani, a ban was imposed on publication of his name.
• Judges can remove the public from court based on the vaguely worded interest of “public morals, the maintenance of order or the proper administration of justice.”
• Publication of names of victims or witnesses may be banned for the “proper administration of justice,” whatever that means.
• Getting access to court exhibits is difficult and often involves getting permission from a judge. Instead of consenting to release of documents, Crown attorneys often raise objections and force the media to bring a court application, as was recently done in connection with the recording of the police interview of Paul Bernardo played in court in the Robert Baltovich case.
Bernardo’s lawyer said his client did not wish to make any representations. Baltovich’s lawyer consented to release of the exhibit without any restrictions, but the Crown attorney wanted limitations imposed on the access and use of the exhibit.
• Adequate notice of potential discretionary publication bans, sealing a court file, or closing a courtroom to the public is rarely given to the media. Sometimes there’s no notice at all, in spite of Supreme Court of Canada decisions directing notice be provided.
• Cameras are barred from trials. Surely with appropriate safeguards cameras should be allowed in courtrooms. Broadcast media are often denied access to videotaped statements. Last year CBC and Global TV were denied access to videotaped statements made by Daniel Sylvester admitting to the killing of Alicia Ross.
• Jury deliberations are secret - even after the trial is over. Why did the jury convict Robert Pickton of second-degree murder and not first-degree murder? We’ll never know.
• There have even been cases where the media have been banned from reporting that a media ban has been issued.
In many cases, the media don’t even know there has been a ban or that a file has been sealed because there are no formal rules requiring the media to be informed of such orders. Indeed there are no formal rules requiring the media to be informed of discretionary publication ban applications.
Given the number of courts, cases, and finite media resources, most judicial proceedings take place in virtual secrecy. The media does not have the resources to cover every significant trial, let alone to make submissions in respect of every discretionary publication ban application.
When no members of the general public are present or represented by the media we have a virtual closed court system, and that’s not in the public interest.
According to the Supreme Court in the 1994 Dagenais v. Canadian Broadcasting Corp. decision, we must avoid a hierarchical approach to Charter rights.
Freedom of expression and freedom of the press are no less worthy than other Charter rights. It’s time we did more than pay lip service to this principle and started examining why it is that there is so much institutional secrecy in our judicial system.
It’s time to examine the rationale behind every publication ban and to only permit such bans as are absolutely necessary to achieve a fair trial and further other Charter interests. It’s time that Crown attorneys stood up for all Charter rights, including freedom of expression.
Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is [email protected].
