Secrecy and ‘open courts’
A publication ban on stabbing victim’s name prevented reporting of what was already posted
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