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The Globe and Mail

A ghastly video sparks a legal circus in Ashley Smith case

If, somewhere in this fair land, there are people with a one-car funeral in need of organization, my best advice is that they not turn to the office of the Ontario coroner.

The opening days of the Ashley Smith inquest - and a more serious inquest than one into the death of this 19-year-old mentally ill girl in a federal prison cell is hard to imagine - have been marked by events which inadvertently have injected indisputably comic elements into a tragedy.

Ms. Smith, or as she is being called by coroner's counsel Eric Siebenmorgen, "Miss Ashley Smith," died in the early morning of Oct. 19, 2007, in her cell at the Grand Valley Institution for Women in Kitchener.

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There was a ligature around her neck, one of many the mentally ill teenager had tied in her terrible institutional life. It was a gambit that until this day invariably had ended with correctional officers rushing into her cell to save her, a gambit many believed was not suicidal, but rather the only way Ms. Smith had to draw other human beings, even those wearing heavy protective gear, into her lonely ambit.

First, presiding coroner Bonnie Porter entertained an improperly brought motion from the Correctional Service of Canada that seeks to deny the public and press access to exhibits and amounts to an extraordinary publication ban.

Dr. Porter's interim solution, pending full argument on the CSC motion next week, was to order anyone wanting the exhibits to fill out a clunky form which I, as someone who covered another inquest in the same building last month, can say usually took a minimum of two or three days to yield results, by which time the news cycle had gone through countless iterations, rendering the information useless.

That changed Tuesday, to give court staff credit.

That morning, however, in her opening remarks to the five-member jury, Dr. Porter went herself one better and casually ordered that "anyone approaching counsel" for copies of exhibits "may be cited for contempt."

The order was so off-handedly issued that only the most alert in the crowded small courtroom even noticed, but, thank heavens, the Smith family lawyer, Julian Falconer, was among them. As he later told Dr. Porter, "My mouth dropped open when in front of the jury, it was announced that members of the press and counsel could be cited for contempt."

The order amounted to an outrageous and unprecedented intrusion both into press freedom (reporters have the constitutional right to obtain publicly filed documents) and upon the defence bar, who have the duty to advocate for their clients and to speak out against injustice.

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As Mr. Falconer said in the course of a rather magnificent explanation of lawyerly advocacy, "Coralee Smith [Ashley's mother]is out of gas, emotionally, physically. … She can't do it herself. … Her husband is out of gas. Their lawyer is here to do it for them."

(The Smith parents fought fiercely for better treatment and care for their daughter when she was still alive and after she died, but their battle has gone on for years and has taken its toll.)

For the second time in two days, reporters frantically e-mailed their offices, and lawyers for The Globe and Mail, the CBC and the Toronto Star duly arrived to join in on the objections.

Dr. Porter seemed surprised by all the fuss, which is surprising.

Few in-prison deaths have attracted the attention of Ms. Smith's, particularly in The Globe and on the CBC, where a Fifth Estate report aired in 2008 complete with segments of shocking video showing Ms. Smith's brutal treatment in the federal prison system.

In addition, no fewer than 14 individuals and organizations have been granted standing at the inquest, meaning the small coroner's building was going to be crawling with reporters, and lawyers, and even the public. Even the CSC, hardly the sharpest knife in the organizational drawer, had a media relations person on site, who blithely insisted the CSC wants the press and public to get full and timely disclosure of the facts even as the Correctional Service is trying to prevent just that.

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So the case was always going to be a big draw.

With Mr. Falconer leading the charge, others joined in to object to Dr. Porter's order, including Peter Jacobsen for The Globe, who told the coroner the effect of her order is "classic chill."

Late in the day, Dr. Porter at last spoke frankly. What was at the root of the order, it appears, was her fear that if she doesn't control access to one exhibit in particular - the prison video that shows Ms. Smith's last minutes - it will end up on YouTube. This, as Mr. Jacobsen said later, is but the reasonable concern of a decent person. And the lawyers agreed that if this was what was bothering her, then she should have said so; they could surely tailor rules to try to limit use of that particular ghastly video.

Dr. Porter had tried to use an elephant gun to kill a flea. It was but one indication of this dated system's inability to cope with the realities of a modern world that demands more, not less, transparency and accountability. And you know what? Miss Ashley Smith deserves nothing but best efforts.

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