Globe and Mail

Judge warns journalists about views

Opinionated reports threaten jury system and the fair-trial process, LeSage says

KIRK MAKIN
Justice Reporter, The Globe and Mail
Tuesday, January 11, 2000

Toronto -- A new and dangerous trend in journalism is threatening both the sanctity of the jury system and the fair-trial process itself, a senior Ontario judge warned yesterday.

Chief Justice Patrick LeSage of Ontario Superior Court said the trend is seen in "the content and tone" of stories and columns that give extremely opinionated versions of court proceedings.

He said journalists also have caused great distress to jurors recently by publishing their names, pictures, occupations and, in one case, a home address.

Chief Justice LeSage warned that reporting that could taint or influence jurors may prompt the Attorney-General to launch contempt-of-court proceedings.

"The Attorney-General will, I know, share my concern and will take appropriate action when required to preserve the right to a fair trial," Chief Justice LeSage reiterated yesterday at an annual ceremony to open the courts.

He also chided Attorney-General James Flaherty for underfunding the province's unified family-court system. He pointedly asked Mr. Flaherty to renew his government's commitment to the branch.

Mr. Flaherty responded with a criticism of his own during the ceremony, criticizing the court system for too often failing to mete out justice in a reasonable time.

Mr. Flaherty told a courtroom filled with dozens of judges that citizens can quite justifiably ask why any trial should be allowed to grind on year after year, as far too many do.

The Attorney-General said he recently urged the federal government to co-operate in combining the Ontario Superior Court with the lower Ontario Court in the interest of streamlining cases.

He renewed his government's support for the idea of eliminating preliminary inquiries in criminal cases.

In recent months, judges have been privately chafing over the erosion of reporting standards that called for trial coverage to attempt a relatively dispassionate portrayal of evidence and legal positions.

Some reporters and columnists have opted instead for opinionated and often fiery accounts of proceedings, leaning heavily on personal analysis and rhetoric.

Breaking judicial silence on the issue, Chief Justice LeSage said it is vital that court proceedings be reported in a democracy. He said, however, that there is a compelling reason why jurors are instructed to avoid gleaning information outside the courtroom or discussing cases, even with their immediate families.

"The reason is so they will not be receiving the view or opinions of their neighbours," he said. "Were it otherwise, we might say to them: 'Go home and canvass your neighbourhood. Canvass your community. Canvass your social groups.' "

In an obvious reference to the recent Just Desserts murder case, Chief Justice LeSage told reporters that several jurors complained after personal information was reported in newspapers.

He said his office passed the complaints on to the Ministry of the Attorney-General, which had already heard independently from the jurors.

"This has an impact on jurors -- and I think, understandably so," he said. "Jurors are entitled to a degree of privacy as they go about their very stressful work. Excessive intrusion is not helpful."

Speaking at the press conference earlier yesterday, the Chief Justice of Ontario, Roy McMurtry, defended the judiciary against allegations that it is too active in striking down legislation which violates the Charter or Rights and Freedoms.

He said that as a former attorney-general of Ontario, he was closely involved in the creation of the Charter. Rather than expressing misgivings, he said, parliamentarians showed great enthusiasm at the time for transferring power to judges.

"It troubles me that elected politicians would be critical of the role of the court in interpreting the Charter, when the invitation and the responsibility was deliberately given to the justice system by parliamentarians in Ottawa," Chief Justice McMurtry said.

He also said he takes a dim view of attorneys-general who publicly denounce court decisions and raise the spectre of judicial activism. If they feel that strongly about a judgment, he said, they should quietly go about having the ministry appeal it.

Chief Justice McMurtry said that although the Ontario Court of Appeal has eliminated most of its case backlog in the past year, one new impediment has arisen. He cited a steady increase in the number of appeals that include fresh evidence not tendered at trial, a hallmark of many claims that a wrongful conviction has occurred.

Advocates for the wrongfully convicted regularly argue that these fresh-evidence applications would not be cluttering up appeal-court dockets if Canada would only create a review body to ferret out wrongful convictions.

Chief Justice Brian Lennox of the Ontario Court also spoke at the ceremony yesterday. He said that although his court has inherited a large volume of new cases because of changes in Ontario court structures, it has managed to keep abreast of its workload partly by streamlining cases that can be settled early.

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