In October 19, 2007, Ashley Smith died from self-asphyxiation while seven guards watched. Three guards and one supervisor were charged with criminal negligence in the death of Ashley Smith. On December 9, 2008, the charges against the four were dropped after a two-week preliminary hearing. A wealth of information was entered as exhibits into the preliminary trial including four hours of video. One of the videos, Video 25, shows Ashley’s last hour of life.
In October 2009, a lawyer representing CBC’s the fifth estate, appeared in front of Justice David Carr, the judge who presided earlier at the preliminary hearing, and asked for an order permitting access to, and copying of, the exhibits in the case. The fifth estate lost. We were opposed by the Office of the Chief Coroner of Ontario, and Correctional Service of Canada. The Coroner’s lawyer argued that the Coroner now had possession of the exhibits, and releasing them would negatively impact the upcoming inquest. Justice Carr ruled that he should defer to that process, and CBC should wait until the inquest was over.
CBC appealed his decision and appeared before Kitchener Superior Court Justice Gerry Taylor. CBC’s lawyer argued that the open court principle should govern. She wrote:
"The open court principle recognizes that the media and the public are essential participants in the judicial process. However, they cannot participate effectively if they are denied access to key information. Access to exhibits is a fundamental right attendant upon the open court principle. Openness of judicial proceedings is constitutionally presumed, unless it is demonstrated that serious and disproportionate harm to the administration of justice would result. No such harm arises here, as the underlying criminal proceedings have concluded."
Justice Taylor agreed that the Supreme Court of Canada’s “Dagenais/Mentuck” test, which applies to publication bans, was the right test. Three days before our story went to air, he ruled that we could have access to some of the video exhibits, only those portions shown to the public in open court, and not the portion that showed Ashley Smith’s death. He granted us ten minutes. The video showing her death was: “not something that I feel needs to be broadcast to the general public”. CBC’s access was limited to three “viewings” of the portion of that video that had been played in open court.
CBC appealed that ruling to the Court of Appeal for Ontario. The panel was composed of Justice Robert J. Sharpe, Justice John Laskin, and Justice Gloria Epstein.
The CBC argued that an exhibit is an exhibit regardless of how much of the video is shown in court. Once a video is entered an exhibit, the whole video is part of the court record, not just the portions that are shown in the public court hearing.
In all of the court proceedings, the Correctional Service of Canada took the position that the Supreme Court’s Dagenais/Mentuck test is not the right test to use. They argued that the Supreme Court’s earlier Vickery test should be applied. This is a very narrow test that is pre-Charter. CSC also argued the open court principle had been satisfied by public attendance in court at the preliminary hearing, and there was no infringement of Charter rights by denying access to make copies for broadcast to the public.
CSC relied on various cases where access to exhibits was denied or restricted as proof that there is no constitutional right to obtain copies of exhibits.
CBC argued the open court principle includes access to all exhibits filed, as filed, and any order denying such access would infringe the open court principle. CBC also argued that trials, and preliminary inquiries at times, are often followed up by inquests. Media reporting on trials has no affect on inquests. Also, inquests are not court proceedings. Inquest juries do not find guilt. They only make recommendations.
The Court of Appeal ruled in the CBC’s favour, and granted access to all video exhibits entered as exhibits at the preliminary inquiry. This ruling is considered a major victory. Getting access to court exhibits has been an uphill struggle for the media. This ruling cemented the media’s right to access exhibits. Justice Robert Sharpe stated in the decision that the media’s right to access judicial proceedings extends to “anything that has been made part of the record.”