Law Times

PAGE 4 NEWS OctOber 17, 2011 • Law times Access to exhibits still denied, media lawyers say But recent court ruling gives journalists new avenue for appeal BY MICHAEL McKIERNAN Law Times But Bert Bruser, a partner cision by the Ontario Court of Appeal on the public's right to access court exhibits a year ago hasn't made life any easier in practice for journalists, media lawyers say. In November 2010, a unan- imous three-judge panel of the appeal court allowed the CBC access to a videotape of the last moments of Ashley Smith's life in a Kitchener, Ont., prison. Th e materials were fi led with the Ontario Court of Justice during a preliminary hearing for prison guards charged in relation to her death. "Th e open court principle and the media's right of access to judicial proceedings must extend to anything that has been made part of the record" unless an opposing party can show the release would cause serious risk to the administra- tion of justice, wrote appeal court Justice Robert Sharpe. E ven as it once again ruled on the issue this month, a landmark de- at Blake Cassels & Graydon LLP and head of the fi rm's media group, says journal- ists are still at the mercy of court staff and local inter- pretations of the ruling. "It was a great decision but it does not appear to have helped very much," Bruser says. "Th e problem is not with the law but with the practice in the courts. It varies from courtroom to courtroom and from city to city in Ontario, but the staff at the court seem to put ev- ery impediment imaginable in front of journalists try- ing to get access. I think ac- cess to exhibits is one of the most serious problems that journalists face and speak- ing as someone who acts for the media, the frustration level is very high." According to Bruser, staff at some courts will allow access to exhibits, while at others, they deny requests unless the journal- ist makes an application to the judge. At some locations, when a trial is complete, journalists have lawyer who represented the CBC in that case says media outlets shouldn't even have to make such court applica- tions. "Th e starting point 'The problem is not with the law but with the practice in the courts,' says Bert Bruser. to submit a freedom of informa- tion request. On Oct. 5, the Court of Appeal issued another decision that gives journalists a new avenue for appeal in certain situations where access applica- tions are unsuccessful. But the should be that you're entitled to look at the exhibits. If someone's opposed, like the Crown or the accused, then the burden should be on that party to show why access shouldn't be allowed," says Iain MacKinnon, counsel at Chitiz Pathak LLP. "Every- thing is supposed to be open, but the reality is that every- thing seems to be closed." MacKinnon says the long-standing policy of On- tario's Ministry of the At- torney General requiring a judge's order for the release of exhibits is based on out- dated case law, particularly in light of the Ashley Smith decision by the appeal court. MacKinnon, a former in- house counsel at the CBC, act- ed most recently for the broad- caster as it bid for access to a police video of Isahaq Omar, a Somali-Canadian charged with weapons off ences. Th e video was fi led at Omar's UNDERSTAND THE LEGAL, ETHICAL AND PROFESSIONAL OBLIGATIONS OF PSYCHOLOGISTS NEW PUBLICATION LAW, STANDARDS, AND ETHICS IN THE PRACTICE OF PSYCHOLOGY, THIRD EDITION DAVID R. 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Writing for the unanimous three-judge panel, Appeal Court Justice David Doherty said the access matter should be characterized as a civil pro- ceeding even though the ex- hibits were fi led as part of a criminal case. Th ere was no reason to continue to label the proceedings a criminal matter when the long-completed trial is no longer an issue, he said. "If the proceedings are characterized as civil, the los- ing party enjoys a right of ap- peal to this court," Doherty wrote. "If the proceedings are characterized as criminal, that party would have no right of appeal to any court but would be required to seek leave to ap- peal to the Supreme Court of Canada." In this case, the ruling allows Omar to appeal the Superior Court decision that granted the CBC access to the Court of Ap- peal, but MacKinnon says re- porters can benefi t in the event that their own applications are unsuccessful in the future. "In the past, most would consider this a criminal pro- ceeding. Th is decision gives us a bit of clarity and it gives us more access to justice. Now you can go to the Court of Appeal, whereas in the past you would have to think about whether it was worth the time, eff ort, and expense of seeking leave from the Supreme Court." But Bruser says he'd still like the Ministry of the Attorney General to take a fresh look at its policies so that journalists don't have to resort to the courts. "Th ere's no appetite for the media hiring lawyers every time they want an exhibit," he says. As a result, Bruser says some journalists are bypassing lawyers and making the ap- plications themselves. "Some- times it works and sometimes it doesn't. When they get to court, they tend to win, but it takes weeks." In response to the concerns, ministry spokesman Brendan Crawley said the government "remains committed to maxi- mum possible openness and transparency in court proceed- ings and continues to work with the judiciary to make ac- cess to exhibits more stream- lined for the media and others who require access." But he said the ministry stands by its policy of req uiring a court application for access to exhibits and is in fact crack- ing down on court staff who skip that step. "A memo was issued to all court staff to en- sure that the existing policy is applied consistently," Crawley said. AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. AUTHORITATIVE. INNOVATIVE. TRUSTED. www.lawtimesnews.com

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