A few months ago, I wrote a column about publication bans and the rights of members of the media to obtain and publish what happens in courtrooms.
An Ontario Court of Appeal ruling from November prompts me to write again on this topic.
The Ontario case, R. v. Canadian Broadcasting Corporation, dealt with the rights of the media to obtain access to and publish portions of exhibits in public court proceedings.
The facts behind this case were of interest to the media and the public.
Read Also
Agriculture ministers agree to AgriStability changes
federal government proposed several months ago to increase the compensation rate from 80 to 90 per cent and double the maximum payment from $3 million to $6 million
A 19-year-old female inmate serving a six-year penitentiary sentence who had a history of behavioural problems and mental illness strangled herself with a strip of cloth while under observation in an isolation cell.
This was common behaviour for her and guards removed things from her neck up to seven times a day.
Four correctional workers were charged with criminal negligence causing death under the Criminal Code of Canada.
During the preliminary inquiry, the crown decided it could not get convictions and withdrew all charges against the four correctional workers.
Despite this withdrawal, the media wanted access to the exhibits, particularly photos, documents and audio/visual recordings.
As is often the case in court proceedings, while only portions of the evidence were played in open court, entire documents were exhibits and formed part of the record.
The Ontario high court ultimately held that the media was entitled to the exhibits under the test set out in two Supreme Court cases but subject to limitations.
For example, they could only get copies of what was played in open court and were barred from obtaining copies of the portions of the video showing the inmate’s actual death.
As well, the family did not assert privacy rights or interests and supported the media’s right of access.
The court noted that had the family asserted some right of privacy, that would be a legitimate and important concern to take into account when making the decision about releasing the contents of the exhibits and allowing them to be published.
This case invokes a consideration of broader issues.
While the court clearly affirmed the open court principle, which allows everyone to attend court except in some particular circumstances, is it right that the media could get access and publish items that wouldn’t be seen by people sitting in the courtroom?
As well, is this sort of publication or broadcast motivated by a genuine right to foster the public’s right to know, or to sensationalize the news?
While a free press and media are vital to a democratic nation, how does society deal with misuse of such information?
There are obviously no clear or easy answers to these issues, but the judicial trend certainly appears to be favouring broader access and a removal of restrictions and barriers to media access to court records.
A case is pending before the Supreme Court of Canada that should clarify this issue, namely CBC v. R. and Dufour.
That decision will likely provide further clarification and guidance as to what to do with media requests in these situations.
Rick Danyliuk is a lawyer with McDougall Gauley LLP in Saskatoon.
