Why we need more openness in our courts

Everyone, it seems, is at least notionally supportive of the idea of our justice system being as open as reasonably possible.

However, even a brief perusal of the 25page chapter on "openness" in the recently released report of an Ontario panel on Justice and the Media will demonstrate that a lot of changes are needed to make our courts as open as they might be.

Although most of the attention thus far devoted to the report has related to its recommendation that cameras be allowed in courtrooms so long as no witnesses are being examined, the seven-member panel found a lot of other areas where public access is more theoretical than real.

"The loudest theme the Panel heard was the importance and lack of openness in the justice system," the report said, adding that the problem was revealed most clearly by "uneven" access to court records and procedures set up to deal with media inquiries.

The panel called on the Ministry of the Attorney General to "adopt policies and procedures to enhance public access to court proceedings, to information about pending court cases and to documents filed in court, consistent with the principles of openness discussed in this report and the other recommendations of this report."

"Although the Courts of Justice Act ... indicates that tape recorders may be used unobtrusively for note-taking purposes by lawyers, parties acting in person and journalists with authorization from the judge, Ontario courts are inconsistent in their practice of allowing tape recorders in courtrooms," the panel said, noting that a practice direction in this regard had been issued by the Chief Justice of Ontario back in April 1989.

Another eyebrow-raiser is what the panel learned in the area of "affordable access to court records."

In calling on the AG's ministry to "set the cost of photocopying records with the primary goal of ensuring reasonable, affordable access to the public and media of court records," the panel noted that the current costs are "significantly higher" than those in other jurisdictions and "steep in absolute terms as well as in relative terms."

How steep? Well, at a time when highquality photocopies can be obtained at private sector outlets at seven cents a page (and

less than that for big orders), the current charges authorized by our Administration of Justice Act are $1 a page for documents filed in Small Claims Court and $2 a page for those in connection with cases in Superior or provincial court. Certified copies are even costlier.

Even viewing court documents can be expensive. The Canadian Association of Journalists had advised the panel that although there's no "viewing fee" in some provinces, the charge is $10 in Alberta, Saskatchewan and New Brunswick and "a high of $32 in Ontario."

Such charges aren't just outrageous but rather proof that official policy is the antithesis of supporting openness.

In welcoming the report, Attorney General Michael Bryant said he thought our justice system "is ready for its closeup," and suggested Ontarians might soon be watching high-profile appeals of murder convictions or proceedings like the provincial government's testing of a ruling in the Caledonia land claims standoff.

"It is inevitable that cameras will be coming into the courtrooms of our nation," Bryant, who commissioned the report in January, 2005, told reporters.

But what of the recommendation that while TV cameras should be permitted in the Court of Appeal and Divisional Court and for applications or motions in the provincial court where no witnesses are testifying, they should continue to be banned from criminal and civil trials?

In an era when some politicians are routinely complaining about judges being too lenient and when Judge Judy and her TV colleagues are dominating the airwaves, there surely is a crying need for Canadians to be more aware of what actually goes on in our courtrooms.

There's no good reason why TV cameras shouldn't be allowed to capture the lawyers' opening and closing addresses to the jury in a high-profile murder case. Beyond that, we would submit that there could be a lasting benefit in having all criminal trials videotaped, if only for potential use in research and appeals.

Permitting cameras in some courts some of the time will surely be a step in the right direction.