Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Associate Publisher ...... Gail J. Cohen Editor ............ Gretchen Drummie Associate Editor ......... Robert Todd Copy Editor ............ Matt LaForge CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinators ...Mary Hatch Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta . . . . . . . . . . . . . . . . . . . . . . . . . Rose Noonan Sales Co-ordinator ..........Sandy Shutt ©Law Times Inc. 2008 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter L ast week, Attorney General Chris Bentley announced that Steven Truscott, who was wrongly con- victed of murder and sentenced to hang at age 14, will receive $6.5 million in compensation for all he endured — the largest-ever such award in Ontario. "We are doing what we can to bring to a conclusion this remarkable aspect of Mr. Truscott's life journey," Bentley told report- ers, adding that he hopes "this chapter of Canadian history is never to be forgotten." Truscott, now 63, was charged in 1959 with the rape and killing of 12-year-old Lynne Harper in Clinton, Ont. He was convicted and sentenced to death, but amid public outcry over the potential execution JULY 14/21, 2008 / LAW TIMES Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign address- es. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Helen Steenkamer at: hsteenkamer@clbmedia.ca or Tel: 905-713-4376 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, Kathy Liotta at 905-713-4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca or Rose Noonan at 905-726-5444 rnoonan@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Case closed of a child, the sentence was commuted to life imprisonment in 1960. Truscott spent 10 years incarcerated before he was paroled in 1969 on tight conditions. Truscott, who later married in secret and lived under an assumed name, always maintained his innocence. He went pub- lic in 1997 in a battle to clear his name, and last year Ontario's top court found Truscott was the victim of a miscarriage of justice, and acquitted him. Former attorney general Michael Bryant apologized to Truscott and enlisted retired Court of Appeal judge Sydney Robins to study the compensation issue. While the ap- peal court stopped shy of declaring Truscott innocent due to a lack of evidence, Robins' report said if a trial were held, "a finding of innocence would be the likely result." Robins recommended the package that works out to $250,000 for each year Truscott spent in jail, and $100,000 for ev- ery year on parole. His wife Marlene will receive $100,000. The financial award is to be split equally between Ontario and Ottawa. "In my opinion, that vindication would not be complete without compen- sation," said Robins. In a statement, the Truscotts called the announcement "bittersweet," but a "final and long awaited step in recogniz- ing Steve's innocence. "We are also painfully aware that no amount of money could ever truly com- pensate Steven for the terror of being sen- tenced to hang at the age of 14, the loss of his youth, or the stigma of living for almost 50 years as a convicted murderer," they further stated. This certainly won't get Truscott his lost years back. Nor does any amount of money fully compensate him for who he might have be- come if he hadn't spent his formative years wrongly sitting in a cell, not to mention time on death row, and the use of drugs on him while he was an imprisoned boy. But it's the least that can be done to right this wrong. — Gretchen Drummie O Hallmark of democracy is open courts Social ne 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 under- standable secrecy to protect minors charged with youthful indiscre- tions 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 ac- cused does not seek a ban, Crown attorneys seem eager to argue in favour of a discretionary ban. Get- ting access to exhibits at a prelimi- nary 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 be- fore 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 sen- tence, 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 ac- cused? 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 war- rants is sealed, often with little or no justification. Media organiza- tions 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 con- tains 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 publica- tion of the names of the adult accuseds in murder cases. When police officer Richard Wills was charged with the murder of Lin- da Mariani, a ban was imposed on publication of his name. Justice By Alan Shanoff • 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 docu- ments, Crown attorneys often raise objections and force the media to bring a court application, as was re- cently done in connection with the recording of the police interview of Paul Bernardo played in court in the Robert Baltovich case. Bernar- do's lawyer said his client did not wish to make any representations. Baltovich's lawyer consented to re- lease of the exhibit without any re- strictions, but the Crown attorney wanted limitations imposed on the access and use of the exhibit. • Adequate notice of potential dis- cretionary publication bans, sealing a court file, or closing a courtroom www.lawtimesnews.com to the public is rarely given to the media. Sometimes there's no notice at all, in spite of Supreme Court of Canada decisions di- recting notice be provided. • Cameras are barred from tri- als. Surely with appropriate safeguards cameras should be al- lowed 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 admit- ting to the killing of Alicia Ross. • Jury deliberations are secret — even after the trial is over. Why did the jury convict Robert Pick- ton 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 publica- tion ban applications. Given the number of courts, cases, and finite media resources, most judicial proceedings take place in virtual secrecy. The me- dia does not have the resources to cover every significant trial, let alone to make submissions in re- spect of every discretionary publi- cation ban application. When no members of the gen- eral public are present or represent- ed 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. Ca- nadian Broadcasting Corp. deci- sion, we must avoid a hierarchical approach to Charter rights. Free- dom 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 examin- ing why it is that there is so much institutional secrecy in our judicial system. It's time to examine the rationale behind every publica- tion ban and to only permit such bans as are absolutely necessary to achieve a fair trial and further oth- er Charter interests. It's time that Crown attorneys stood up for all Charter rights, including freedom of expression. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He cur- rently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com.

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