Charlotte Lafferty case a step forward for media access to N.W.T. court exhibits
Judge allowed media to have copies of audio and video exhibits, including emergency calls to RCMP
Public and media access to the courts is perhaps more important in the North than it is in the provinces. The justice system answers lingering questions for communities. It separates truth from gossip and rumour.
But that truth is often revealed, as it was in the Charlotte Lafferty murder case, in courtrooms hundreds of kilometres from the communities where the crimes occurred. People who cannot travel those hundreds of kilometres to be in court must rely on media to find out what happened.
Despite that, reporting on trials here can be a frustrating experience for journalists. Typically, exhibits entered are not available. In fact, no one in the courtroom, apart from the lawyers, the judge, the accused person and the jury, can see documents and photos lawyers refer to during the trial.
In the past, reporters have had to rely on the kindness of clerks or prosecutors to get glimpses of these documents during brief breaks in the trial. Video and audio recordings, such as recordings of 911 emergency calls that are often part of news reports of trials in southern Canada, were not available to media here.
Two weeks before the Charlotte Lafferty trial began, CBC requested copies of audio and video exhibits presented at trial.
CBC had made a similar request at the first-degree murder trial of Emrah Bulatci, who was convicted in 2009 of killing RCMP officer Christopher Worden in Hay River. In that case, CBC knew the evidence at the trial would include secretly-recorded telephone conversations Bulatci had had with his father while incarcerated in the North Slave Correctional Centre.
CBC hired a lawyer to try to get copies of those tapes as soon as they were entered as exhibits. The lawyer reached a gentleman's agreement with the Crown prosecutor, who agreed to notify CBC just before the exhibits were entered. CBC could then apply to the court for copies of the exhibits.
According to the CBC lawyer, the Crown prosecutors reneged on that agreement. The tapes were never made available to media.
Flash forward six years. For the Lafferty case, CBC's request for copies of audio and video exhibits was initially made to the court registry.
By this time, the trial was just about to get underway. A number of voir dires were taking place — discussions between the lawyers and the judge about evidence and other issues that need to be settled before the jury starts hearing evidence. Because those arguments were covered by publication bans, CBC was not in the courtroom for many of them.
But at one point, I stopped into the courtroom to see what they were arguing about. To my surprise, Justice Louise Charbonneau, said, "Oh, there's Mr. Gleeson now," and proceeded to explain that they were talking about the request I had made for audio and video exhibits at the trial. The request had been forwarded to the judge.
Defence lawyer Charles Davison took no position on the request, saying his only concern was that any exhibits not identify the accused youth.
Prosecutor Annie Piche said the Crown could make extra copies of the emergency calls and any video exhibits entered. But she also argued the exhibits should not be made available without a formal application to the court. Once the application was made, the prosecutor and defence could use it as a basis to argue about whether the exhibits would be made available.
Piche submitted two court decisions in which judges ruled that exhibits are court "records." The Youth Criminal Justice Act, which applied in the Fort Good Hope case, does not allow public access to youth court records.
Think about that for a minute. The public prosecutor, who has a duty to help the public understand the justice system, was the only one in the room arguing against public access to the exhibits.
Charbonneau pointed out that the exhibits in the cases Piche had filed identified the accused youth in each case. Piche admitted the exhibits being requested in the Fort Good Hope case did not identify the accused man.
Charbonneau reminded the lawyers that the starting point for the discussion about public access is that the courts are open to the public. It's up to anyone seeking to limit that access to demonstrate why it should be limited.
Charbonneau could have ruled that CBC should make a formal application, as it had planned to do during the Bulatci trial. But Charbonneau said she was going to treat the request as an application and granted access to the exhibits.
As a result, people in Fort Good Hope and around the territory were able to hear the urgency in the voice of Barthy Kotchile as he called police while witnessing the attack. They were able to see video of the crime scene that gave a more vivid indication of the brutality of the attack than any words could.
The Northwest Territories court system has a long way to go to catch up to court systems in the provinces in terms of their openness. Almost two years after police began the investigation of Lafferty's murder, search warrants they executed as part of that investigation — which by law are to be made publicly available as soon as reasonably possible— are still not accessible by the public.
The courts have rules governing media coverage and media access to the courts, but they're not written down anywhere. Often proceedings seem more like a private matter between the lawyers and the judge than an open, public process.
Justice Charbonneau's decision in this case brings the Northwest Territories justice system a bit closer to the openness and public access that are demonstrated in courts in southern Canada.