Time for more transparency in Canada's courtrooms

The Conservatives have pledged to bring in an omnibus crime bill in the fall. They should add an open justice agenda to this bill.

A suggestion for the Conservative crime agenda

Some of you who responded to my last column strongly favoured naming and shaming Vancouver's Stanley Cup rioters online, on the assumption that our courts would fail to punish these rioters appropriately.

For a democracy to function, society has to have confidence that justice can be done. From my perspective, one of the main reasons so many Canadians are dissatisfied with our current system is simply its lack of transparency.

Compare our system's transparency with that of Florida, where the televised murder trial of Casey Anthony, a young, single mom accused of killing her two-year-old daughter, just concluded after six weeks of testimony that riveted Americans and Canadians alike.

The jury's not-guilty verdicts surprised prosecutors and many others. But everyone praised the fairness of the judge and respected the process. Wide access to information has facilitated a relatively informed public debate about what went on in that trial.

Open justice has been repeatedly recognized by our courts as an essential element of the Canadian system.

Over time, though, special interests have convinced federal lawmakers to load the criminal justice system with a patchwork of routine and often mandatory publication bans, with little or no recognition of the overarching importance of openness in general.

As a result, the public is often left wondering what's really going on in the cases they want to follow.

The Conservatives have pledged to bring in an omnibus crime bill in the fall. They should add an open justice agenda to this bill.

It would cost the taxpayer nothing, and enable Canadians to better understand and monitor what goes on in their courtrooms.

Publication bans

Publication bans begin almost as soon as a charge is laid. On request, an accused person can get a publication ban on everything that happens at the bail hearing, apart from whether bail was granted, and the terms of any bail order.

The ban is mandatory when the accused asks for it, and the judge has no option but to comply. There is no debate about it, let alone an opportunity later to have it reviewed and rescinded.

Never mind that publicity in over 99 per cent of these cases could never affect an accused person's fair trial, because those cases will be heard only by judges, who are presumed not to be influenced by anything outside the courtroom.

Even in cases that could involve juries, there are often reasons to permit more public openness at this stage: the basic facts of the case may already be well known, the accused may already have given interviews to the media, or the police may have held a press conference to assist them in resolving the crime.

With the ban in place, if the judge lets the accused out on bail, the media can't even publish the reasons why.

The public is left to speculate, for months or even years, about whether it is at risk. What kind of meaningful public discussion can there be about this if, for example, the accused commits another offence while out on bail?

Defense attorney Jose Baez presents closing arguments in the Casey Anthony murder trial in Orlando, Fla., in July 2011. The trial was watched by millions on TV. (Red Huber/Reuters)

When the media can finally publish what happened at the bail hearing – at the end of the trial itself – it is almost always overshadowed by the verdict.

The result is that this crucial part of the criminal process is rarely monitored by the public.

Parliament's turn

The Supreme Court recently upheld the constitutionality of this mandatory ban at bail hearings, albeit with a strong dissent.

What's more, the majority appears to have done so unenthusiastically, finding the mandatory ban "not a perfect outcome," but only "a reasonable compromise" that was within the power of the Parliament that enacted it.

Given the mandatory ban's weaknesses, identified not just by the media but by many of the judges considering the ban, it is clear that Parliament can do much better.

For example, why not consider a temporary ban, no longer than a month, to give the accused time to consider whether there's a need to apply for a longer or more tailored ban, in the context of the presumption of openness.

Beyond this, an open justice agenda should deal with more than publicity bans at bail hearings. There are routine bans throughout the criminal process that need to be revisited.

One is the publication ban on the evidence heard at a preliminary inquiry into the more serious offences. It is also mandatory at the request of the accused.

Eliminating the mandatory aspect would still permit an accused person's lawyer to convince a judge that a ban is necessary at that stage, bearing in mind any specific evidence that would pose a real risk of prejudice to the critical issues at the trial, as well as the length of time before trial, and all the other safeguards for fair trial, such as a change of venue, the jury selection process, the jurors' oath, and the judge's instructions to the jury to decide cases only on the evidence.

Many will recall that for most of the last century, preliminary inquiries were completely public, without a ban on this evidence at all.

Relief valve

There are also publication bans available to protect the identities of many of those involved in court proceedings that go way beyond protection for sexual assault complainants alone, protecting many witnesses in circumstances that don't require that level of protection.

What's more, there is no requirement for the beneficiary of such a ban to be consulted in advance of it being imposed, to confirm that he or she wants it. And there is no express procedure in the Criminal Code to apply to undo the ban once it's put in place, when it's outlived its purpose.

There is also no provision for people protected by the ban in adult cases to waive its protection, and permit publication of their identity, should they want to talk in public about their ordeal, or be interviewed in the media, to put a face to the crime.

In youth court, by contrast, that waiver is already possible. Young victims and witnesses can waive the protection by themselves when they are 18 years or older, or earlier, with the consent of their parents.

This relief valve for victims, witnesses and the media has worked well in youth court for years, and is long overdue in the Criminal Code.

Real transparency

Finally, there are many obstacles at trial to real public access.

In theory, court exhibits are presumed to be available to the media on request. In practice, lower courts too often require formal applications for that access, which delays or effectively denies it.

According to the higher courts, there should be immediate public access unless there's already been a successful application to restrict it. Timely comprehensive and accurate reporting depends on easy access to court exhibits, at the latest when they are referred to in court.

But improving that would not be enough. Today's technology, for example, permits webcasting court proceedings, in addition to direct radio or television coverage.

Individual judges should have the right to permit electronic court coverage -- if they decide it is in the public interest, after considering any potential harm to the specific proceedings. An accused or the Crown should not be able to close this form of public access down completely, simply by denying their consent.

Trials historically were designed as the forum where the public would finally see and hear, on oath, what really happened in its community. We can now restore that important historical connection.

Canadian media have proven time and time again that electronic public access can work, most recently in the polygamy trial reference case in British Columbia. But that experience hasn't yet translated into the kind of routine access that's been permitted in most U.S. states for almost three decades.

Given our comfort with, and reliance on, modern electronic media, it's in the interests of our Canadian justice system to finally offer real transparency to the public it is there to serve.