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Ashley Smith died at Kitchener's Grand Valley Institution for Women on Oct. 19, 2007. (Copy Photo by Kevin Van Paassen/The Globe and Mail/Copy Photo by Kevin Van Paassen/The Globe and Mail)
Ashley Smith died at Kitchener's Grand Valley Institution for Women on Oct. 19, 2007. (Copy Photo by Kevin Van Paassen/The Globe and Mail/Copy Photo by Kevin Van Paassen/The Globe and Mail)

CSC seeks publication ban in Ashley Smith inquest Add to ...

The family of Ashley Smith, the pitiful teenager whose death was captured on prison video and watched by correctional officers who had been ordered not to enter her cell unless she had stopped breathing, doesn't want the video or anything else about their daughter's dying kept secret.

In other words, the people for whom any public airing of this material at the Ontario coroner's inquest now set to begin would be most painful want the full story told.

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The correctional officers, as represented by their union and its lawyer, Howard Rubel, don't want the video or anything else about their conduct kept secret; in fact, the COs have been fighting for years to have the videos made public.

In other words, those who might seem to have the most to lose - the very guards who witnessed Ms. Smith's last moments at the Grand Valley Institution for Women in Kitchener on Oct. 19, 2007, and who were at one point even charged criminally over their conduct, these charges later dismissed after a preliminary hearing - want the full story told.

So who does want the videos - and pending a ruling from the Ontario Divisional Court, whether some of them will ever be played at this inquest remains up in the air - and also much else kept secret?

Meet the Correctional Service of Canada - prison management, wardens, administrators and policy makers whose faces never appear on the videos, but whose fingerprints, it would seem, are all over this file.

On the eve of the inquest starting, the CSC late last Friday filed a last-minute submission asking for a sweeping and unprecedented publication ban on all exhibits, expected to number in the hundreds.

The improperly late notice meant media organizations - The Globe and Mail, Toronto Star and the CBC - had to scramble to have lawyers in court on Monday to reply to the surprise move from CSC lawyer Joel Robichaud.

Mr. Robichaud wants coroner Bonnie Porter to delay giving the media access to any of the forthcoming exhibits - not merely the controversial videos, but prison documents that detail Ms. Smith's harrowing journey through the federal prison system, e-mails and the like - until the day the jury returns with its verdict.

Since the inquest is expected to last six to nine months, this would amount to no temporary ban, but rather one that would virtually guarantee irrelevance and effectively be permanent.

If Dr. Porter doesn't buy that and allows the press copies of the exhibits, Mr. Robichaud said, well then the media shouldn't be able to use or publish them until verdict day - which amounts to the same thing.

Failing that, the lawyer said, broadcast or publication of exhibits "should be delayed until each individual exhibit is presented in context to the jury," whatever that means.

Oh, and the CSC at the least wants the faces of correctional officers digitally obscured on the videos - in direct opposition to the wishes of the COs themselves.

At the end of a day's worth of argument, which Mr. Rubel aptly described as "submissions about making submissions," Dr. Porter decided nothing but that the full hearing about press access to exhibits will be held on May 24, and that the inquest will begin hearing evidence, and presumably making matters exhibits, on Tuesday.

No one has said what will happen to the requests the media may make for copies, but my hunch is that they may mysteriously stall in the bureaucracy until Dr. Porter has made her ruling next week.

While this may all seem terribly inside-baseball, it isn't.

The courts in this country, as decision after decision have held, are presumptively open, not closed. While in practice that may mean open to the press - since most other citizens are at their jobs and unable to be there in person - the principle means that anyone can sit unmolested in court, ask to see exhibits and not be subjected to questions about who they are or why they are there.

Such public scrutiny is particularly important in cases that deal, as does this one, with systems that are usually closed.

Most of us know little of prison life, let alone have any understanding of how a mentally ill girl like Ms. Smith, whose real-world "criminal" career consisted of pulling fire alarms and the like, could end up moving through 17 federal prisons and hospitals in less than a year, her treatment ever more isolating and troubling.

As a Divisional Court judge once wrote in another case involving the death of a mentally ill inmate, the key function of a coroner's inquest in these deaths is "to provide the degree of public scrutiny necessary to ensure that it cannot be said, once the inquest is over, that there has been a whitewash or a cover-up."

That judge went on to say, and this was quoted on Monday by one of the lawyers, "There is no better antidote to ill-founded or mischievous allegations and suspicions than full and open scrutiny."

And there's no better fuel to fan that sort of cynicism than secrecy, publication bans and what Smith family lawyer Julian Falconer calls this "unprecedented incursion into the public nature of the inquest."

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