This week, The Globe and Mail and other media published a story about the police investigation into a video that allegedly showed Toronto mayor Rob Ford smoking crack cocaine.
The articles were based on an Information to Obtain (ITO), which outlines the reasons the police have for seeking a search warrant. In this case, the police alleged the video could "provide evidence of … drug possession against Robert Ford."
This follows several ITO-based stories that said Mr. Ford was the focus of a long police investigation after the Toronto Star and the website Gawker reported on the original purported crack video. The earlier ITO included photos of meetings between Mr. Ford and Alexander (Sandro) Lisi, whom police refer to as a drug dealer in the document.
Two important things to remember: These are allegations, not something proved in court, and you wouldn't even know about them, had the media not gone before a judge and asked.
The issue is the public's right to know about elected officials, important police investigations and our justice system. In the case of this ongoing story, lawyers representing The Globe and Mail, CTV News, CBC, Toronto Star, Shaw (Global TV), Postmedia and Sun Media have been in court a dozen times, seeking – and gaining – public access to search-warrant material.
Ontario Superior Court Justice Ian Nordheimer has ruled in favour of the media arguments, in one case saying: "In terms of legal proceedings, it is hard to conceive of a matter that would be of more importance to the public interest, at this particular point in time."
This is hardly the first time news organizations have pressed for such information. Several years ago, they argued for an open hearing on the inquest into the death of Ashley Smith, the 19-year-old who choked herself to death at the Grand Valley Institution in Kitchener, Ont., in 2007, as guards stood outside her cell and watched.
The Correctional Service of Canada sought a publication ban on more than 100 exhibits related to the case until the coroner's jury reached a verdict. It sought to ban video footage of the incident even though the officers involved and Ashley Smith's family wanted the footage released. Ultimately the Ontario Court of Appeal not only upheld the media's right to access but also to be given copies of the exhibits. More recently, media lawyers argued against a publication ban in the case of the deadly mall collapse in Elliot Lake, Ont.
The rulings have generally been in favour of openness. Other courts, such as the Supreme Court of Canada and the Ontario Court of Appeal, have ruled in favour of the media's social and moral duty to report openly on matters of public interest. So why is it that the media must continue to do battle?
"Access to the proceedings of a court room are, or should be, a basic right," Globe and Mail editor-in-chief David Walmsley says, noting that the paper is too often "forced to spend time and money fighting delays at court that are introduced with little to no justification.
"As Justice Nordheimer says specifically in this case …, we are not in pursuit of trivia. We are dealing with significant issues of public interest that deserve the support of the courts."
At the same time, there continue to be roadblocks in gaining everyday public court documents. If you want to access search-warrant information, for example, you have to know where and when the warrant was executed, and you have to know where it was filed.
Most court work is paper-based, so reporters must go to the courthouse in question, and then access may depend on whether a particular clerk or judge says yes or no. Court reporters and researchers know that standards vary widely, depending on how well-versed the clerk or judge is in a court's policies on media access.
There are exceptions. The higher courts often offer better access, and some, such as the Ontario Court of Appeal, have an electronic database for their documents. British Columbia has a system (called BC Online), which allows electronic searches of not only criminal cases but civil and family one as well .
The public has free access to most court hearings, so it makes sense that court papers be treated the same way.
After all, the document released this week included something quite remarkable: the fact that Mr. Ford's older sister, Kathy, told the police that she and the mayor had smoked crack in her basement.