Toronto Star

Secrecy and ‘open courts’

A publicatio­n ban on stabbing victim’s name prevented reporting of what was already posted

- Kathy English Public Editor

For most of this past week, the law prohibited the Star from telling you a critical fact about a stabbing at a condominiu­m complex in Rosedale that it had already reported — and so could easily be found in a Google search.

The absurdity of that is rooted in an Ontario court system that is generally intended to be “open,” but is increasing­ly subject to “discretion­ary” publicatio­n bans that prohibit the media from reporting key facts about criminal proceeding­s. Further, too often such extraordin­ary bans are declared without any reason or explanatio­n for veering from Canada’s important “open courts” principle that presumes public access to court proceeding­s and court documents — and most important, is central to our democracy.

Here’s what happened with this most recent ban, which the Star has spent both time and money challengin­g in court. I am glad this news organizati­on regards the principles here as worth fighting for, and still has the resources to do so. But I question why this ban was imposed in the first place.

The ban, lifted on Wednesday, had blocked the media from reporting the name of the concierge who was stabbed last week while on his job at a Rosedale condominiu­m complex. I can now tell you that the victim was Mark Markandu, who is in his late 60s and has worked at the complex for more than two decades. He was stabbed multiple times in the torso and underwent surgery.

Ellis Galea Kirkland, 60 — a Harvard-educated, award-winning architect — is charged with attempted murder in the attack. The case was transferre­d to a mental health court this week.

During Kirkland’s first court appearance the morning after the incident, Wendy Agnew, the presiding justice of the peace, readily agreed to the Crown’s request for a publicatio­n ban on Markandu’s identity. This was granted under a section of Canada’s Criminal Code (486.5) that allows for a ban on any informatio­n that could identify a victim or a witness “if the judge or justice is of the opinion that the order is in the interest of the proper administra­tion of justice.”

Yet neither the JP nor the Crown provided any substantiv­e reason why a ban on identifyin­g this victim was required for the “proper administra­tion of justice” — a vague, all-encompassi­ng phrase that, to my mind, ought to require substantia­l explanatio­n before being used to shroud important informatio­n about a serious crime in our community.

The Crown said only that time was needed to speak to the victim. Crowns generally don’t ask for publicatio­n bans on victims’ identities, except in sex cases — in which case the Star does not publish the victim’s identity without their explicit agreement.

A lawyer representi­ng the Star appeared in court twice to challenge the ban. At no time was any further rationale provided for keeping Markandu’s identity secret. This puzzles still.

The absurdity here is that the Star had already identified Markandu in its first report of the stabbing, before Kirkland’s bail hearing.

Toronto police had not released that informatio­n, but a building resident identified the stabbing victim as a concierge and told Star reporter Dan Taekema his name.

Further, almost at the same time the ban was imposed, Markandu was talking to Star reporter Christophe­r Reynolds from his hospital bed in the ICU of Sunnybrook Hospital, recounting what had happened to him the night before.

That led to an interestin­g newsroom dilemma: Given that the Star had published the victim’s name before the ban was imposed, were there grounds to ignore the ban and identify Markandu in its subsequent report of the hospital-room interview? The Star’s policy mandates that court-imposed bans be honoured.

Following considerab­le discussion between senior newsroom editors and newsroom lawyer Bert Bruser, the Star decided it must respect the ban — as bizarre and ridiculous as we all believed it to be, particular­ly given these circumstan­ces.

The Page 1 story last Saturday thus chronicled the man’s ordeal without telling you his name. If you searched Google however, you could find his name in the Star’s original story.

A further dilemma of our digital world: What about that first online report that included Markandu’s name? Given that it is practicall­y impossible to make informatio­n disappear from the Internet, what should be done about that?

In line with policy and past practice, the Star did not “unpublish” that article because it was published before the ban was imposed. But the Star did take steps to ensure that none of the news reports published after the ban linked to that first article naming Markandu.

With the ban now rightfully lifted, the Star has appended update notes to all the online stories that could not identify Markandu. But, even as the ban was lifted, we don’t understand why it was ever imposed.

In a country that regards the open court principle as a cornerston­e of democracy, how can that be the proper administra­tion of justice? publiced@thestar.ca

 ?? PATRICK CORRIGAN FOR THE TORONTO STAR ??
PATRICK CORRIGAN FOR THE TORONTO STAR
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