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Ontario Courts Read The Riot Act
The Ministry of the Attorney General is reviewing its policies on media access to criminal court records in a bid to make the province’s justice system more open and transparent.
An ongoing Star investigation has found court staff in Ontario are increasingly denying public access to records that legal experts say should be readily available.
The ministry, in consultation with the province’s chief justices, is checking to see if policies must be clarified to ensure court staff are properly applying the law.
“In some instances existing policies are not clearly enough expressed and as a result differing practices can develop,” a ministry spokeswoman said in a statement. “The ministry continues to work to provide as much consistency in policies and procedures as possible in courts across the province, recognizing the very different case loads, sizes and resources of different court locations.”
Ministry staff have received numerous complaints in recent months from the Toronto Star and other media outlets whose attempts to access information about criminal charges and convictions have been rebuffed. While the current policy makes it clear that information from court hearings should be made public, some staff have denied that information because of a guideline that forbids them from releasing a “general criminal record.”
Media lawyers and privacy experts say these actions appear to run afoul of the country’s “open court” principle.
“The openness of the court is essential to the credibility to the court as a democratic institution,” said Dan Burnett, president of the Canadian Media Lawyers Association.
Procedural barriers to accessing public court records “dilute an absolutely fundamental attribute of our justice system,” he said.
Access to these historical criminal information is one of several issues the ministry is reviewing, according to a senior official providing a briefing on background.
In May, Star journalists began making requests at courthouses across the city for records on previous criminal convictions of associates of Mayor Rob Ford as part of the paper’s ongoing investigation. Their crimes included assaulting women, drug possession and threatening death.
The records, known within courthouse walls as “the information,” feature a brief synopsis of the charges and, if guilty, the punishment. It is the Coles Notes to what happened in a trial.
However, the Star’s attempts to access some of these records were denied because its applications were missing required information, such as the exact date of conviction. Court staff, who could verify the date with a few taps of a keyboard, refused to help, citing ministry policy.
Journalists in Ontario have often been ensnared in this kind of courthouse Catch-22, said Lisa Taylor, a lawyer and professor at Ryerson University’s School of Journalism.
“You can’t get the file without the information and you can’t get the information without the damned file,” Taylor said. “It’s tougher in Ontario than in most other jurisdictions in Canada.”
Historical criminal records contain information that could have been readily reported had a journalist been in the courtroom, she said. However, in many instances, the public’s interest in a matter arises after the case is done, she said.
Taylor used the hypothetical example of a driver who recorded his 12th drunk driving offence, making his first unremarkable conviction newsworthy.
“The journalist is the surrogate for the public,” she said. “When information is withheld from a journalist, information is being withheld from the public by extension.”
When told of the difficulties obtaining court records without specific details in an interview last week, Ontario’s top privacy watchdog was concerned by court staff’s practice of not releasing the information.
“That offends me because people hide behind privacy. That has nothing to do with privacy. You have to know the date (and other specifics about the offence) and if you know that you can get the information?” said Ann Cavoukian, Ontario’s Information and Privacy Commissioner.
“Ultimately, the information is accessible if you have the right key.”
The ministry said it has reviewed its policy on an ongoing basis since first posting it online in 2007. Since then, it’s made it easier to access records covered by certain publication bans and future court dates for youth.
The ministry’s review is ongoing and any policy changes are expected to be rolled out in waves.
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