When the phone call comes in that a deliberating jury is ready to come back into court, whether with a question or with a verdict, everyone who needs to be in the room scrambles.
Lawyers, the accused, victims and the media have to be in the courtroom within 15 minutes.
There is a standard notification process for everyone, except journalists.
It’s a gap that makes the justice system less transparent and accessible, advocates for open courts say, despite the courts themselves acknowledging the “essential” role played by the media in keeping the public informed.
“The only source of information for most people about what is going on in our court system is the media,” says media lawyer Iain MacKinnon. “Unless the public can scrutinize what happens in the courts and how the justice system is operating you can’t have confidence that it’s working.”
In many parts of Ontario and across the country, journalists are not informed by the court when a jury returns a verdict. The Crown and defence are informed through a phone call from the court registrar, who handles administrative tasks during a trial.
Toronto journalists have been relatively lucky. At the downtown Superior Court of Justice, there is a long-standing judicial policy allowing a judge to order the court registrar to notify media with a phone call. However, in recent months reporters from the Star and other outlets have been told — wrongly — that call was no longer allowed.
Journalists have instead relied on the goodwill of lawyers, police officers and other parties involved in the case for a heads up — or sit in the hallway outside the courtroom indefinitely, since it’s impossible to know how many days, and sometimes how late into the night, a jury will deliberate for.
Despite the apparent change in Toronto, the Ministry of the Attorney General has confirmed the judicial policy was still in place.
On Thursday, in accordance with that policy, a court registrar did relay a reporter’s request for notification to Superior Court Justice Brian O’Marra, who was presiding over the trial of 2012 Eaton Centre gunman Christopher Husbands. Justice O’Marra denied the request.
Over the six days of jury deliberations, reporters relied on updates from lawyers involved in the case in addition to waiting outside the fourth-floor courtroom.
Ontario courts have seen several recent developments that have made the court more open and accessible for media, including the introduction of a publication ban-notification system and a simplified process for requesting court exhibits.
The lack of any formal notification process for journalists covering jury trials is “ridiculous,” says MacKinnon who has represented the Star in the past.
It can feel like “it’s one step forward, two steps back,” he said of the recent judge’s refusal to permit media notification of a jury verdict. “It is discouraging when you run into roadblocks like this that are such an easy fix … it should be a mandated part of the process.”
An informal Star survey of journalists who cover courts in Ontario and across the country found that any notification at all is an exception. It is not common practice in Oshawa, Brampton, Newmarket, Vancouver and Montreal. In Hamilton and Whitehorse, court registrars do call media. In Manitoba, no official policy exists but Aimee Fortier, executive assistant to the Chief Justices and Chief Judge, provides email notification to reporters when juries come back with questions or verdicts when it is feasible to do so.
“The role of the media is to be the eyes and the ears of the public in the courtroom,” says lawyer Iris Fischer, who has represented the Star. “And if a jury is coming back with a verdict or a question there is a great deal of public interest in that … in my view it behooves the administration of the court and judges to facilitate reporters having the information they need so they can do their job.”
The Superior Court of Justice did not provide a response Friday as to whether a regular notification procedure for media would be considered.
Alyshah Hasham is a Toronto-based reporter covering crime and court. Follow her on Twitter: @alysanmati