I thought of that recently when I read that Dr. Bonita Porter had been replaced as the coroner hearing the Ashley Smith inquest. Smith was the mentally ill teenager who strangled herself while in jail. Porter decided videotapes showing the young woman’s treatment by Correctional Service of Canada officers while in custody should not be admitted as evidence at the inquest. She also denied press access to the materials, worrying they might find their way onto YouTube.
The Ontario courts later straightened out the coroner, ruling she blew it by not admitting them as evidence, a move one judge in the Ontario Divisional Court said amounted to a denial of natural justice because it would prevent the Ashley family from being fully heard at the inquest. Later, the Court of Appeal ruled in a separate case overturning a decision from Ontario Superior Court Justice Gerald E. Taylor that the media, indeed, had a right to copy the videos. Taylor had denied the CBC a copy of the video because: “The gruesome image of a person dying is not something that I feel needs to be broadcast to the general public.”
As the appeal court rightfully pointed out “absent any finding of potential harm or injury to a legally protected interest, there is nothing in the law that permits a judge to impose his or her opinion about what does not need to be broadcast to the general public. That would be inconsistent with the constitutional protection our legal order accords freedom of expression and freedom of the press.”
Porter has since stepped aside from the Smith inquest, citing her pending retirement, and been replaced by a coroner with legal expertise. Taylor, we can assume, is licking his wounds, and probably not watching CBC.
The Ashley Smith case is a microcosm of a bigger and growing problem — the attempt by those with power to exercise it in a manner that thwarts transparency and attempts to impose secrecy over matters of public interest. In the Smith case, it was done under the guise of the outdated legal principle of moral turpitude. Increasingly, governments to corporations and non-profits are becoming less transparent and accountable to the public and shareholders they were set up to serve.
Freedom of information laws in Canada have become jokes. A recent British study found Canada’s ranked dead last when compared to FOI laws in other leading parliamentary democracies. Corporate disclosure and consumer protection laws don’t seem much better.
When judges and adjudicators aid and abet governments and institutions in suppressing information, it merely validates the attempts by politicians and government officials, CEOs, and corporate spokespeople to hide information and deny access to it in the first instance.
How many times have you seen news about a citizen getting the short end of the stick from government or some sleazy company only to read the official can’t comment on individual cases because of privacy concerns? Of course they can comment. They choose not to. If a person is publicly complaining about treatment they received from a company or a level of government, then it’s a licence for those being accused to comment. Rather than address shortcomings when caught in a dicey situation, government and corporate officials would rather obfuscate, look for scapegoats, or find a law to hide behind.
I would argue that privacy laws have become a major impediment and a detractor to openness, laying down cover for those accused of malfeasance. It’s easier to hide behind the fear of releasing private data than addressing actual concerns. (I would even argue Canada’s privacy watchdogs are part of the problem. They purport to oversee both freedom of information and privacy laws, which puts them in a terrible conflict.)
Today, the reality is every citizen with a cellphone can document in real time what goes on around them and share it with the world. The idea that our institutions can continue to deny or protect themselves from public scrutiny in the Internet age is ludicrous. Look at the revolution sweeping the Arab world. It’s being documented on Twitter and YouTube. Citizens in Egypt, Syria, Yemen, and Libya have shown the world the brutality of their governments and those in power have had little way to control the images.
Whether people like Porter or Taylor like it or not, the public is setting the tone. Citizens should be the arbiters of what they will watch or see. They can choose to tune in or tune out. Politicians, CEOs, and those in public positions need to realize that the britches they fill belong to the citizens or shareholders who put them there. When they become too big for those britches, then it’s time for a change.