Judge grants media access to some documents in alleged teen ‘swarming’ murder

A judge has granted journalists access to some, but not all, records in the ongoing case against eight teenage girls accused of killing a homeless man in downtown Toronto.

A group of media outlets, including the Toronto Star, applied in court to access records in the case after being unable to obtain even the court file number.

Under the Youth Criminal Justice Act (YCJA), which governs cases involving young persons, the identities of youth who are criminally charged cannot be published. The materials the media hoped to access were to be able to better follow the court process and prepare stories for when certain, nonidentifying details can be reported.

Already one girl, whose specific age had previously not been made public, was released on bail. The records the media applied to gain access to also included her bail conditions and evidence presented during that hearing, which is protected under a separate publication ban related to bail hearings.

The Crown in the case and the lawyers for the girls opposed the media application, citing the girls' privacy rights.

On Thursday afternoon, Justice Sheilagh O'Connell released a written decision that granted access to basic court information, which typically shows personal information of each person charged, their charges and other court information, but ordered any information that could identify the girls be blacked out. The age of each girl will be released, identifying them as Young Person #1, Young Person #2 and so on. Access to exhibits in the bail hearing was denied.

The incident has understandably shocked the residents of Toronto and the broader community. The case has attracted widespread public interest and media attention," O'Connell said in her decision.

She went on to later write: It is vitally important to the young persons in this case, as well as to the broader community, that the young persons' right to a fair trial is protected."

And that granting complete and unredacted access to the entire youth court file" at this stage creates a risk of inadvertent or accidental dissemination of any or all of this private information."

The YCJA's primary goal, O'Connell wrote, is to limit the stigmatization that attaches to a young person" investigated for or charged with a crime. Under the Act, youth records are not publicly accessible, but anyone with a valid interest" as determined by a judge may be granted access if it is in the public interest or necessary for the proper administration of justice.

O'Connell wrote there was no dispute the media had a valid interest in these records and that it was vitally important" the media be able to report on these court proceedings and to publicly scrutinize the judicial process," but she did not agree with the media's argument that sufficient privacy protections were already in place with the various publication bans.

Ryder Gilliland, who represented the media group as an expert in media law at DMG Advocates, said O'Connell's statement about inadvertent disclosure of protected information is troubling."

Media accesses materials all the time and in virtually every court case they're subject to publication bans," he said. Here the court is taking a different perspective because the interest being protected is the privacy rights of a young person" but the manner in which media abides by publication bans is no different.

He said while the YCJA was drafted with good intentions, it fails to take into account all the interest in open courts and media participation.

The eight girls, aged 13 to 16, were charged last month with second-degree murder after the alleged attack near York St. and University Ave. Ken Lee, 59, was taken to hospital, but later died. Police suspect the girls may have also been involved in a string of random attacks on the TTC's Line 1. They have not been charged in any of those incidents.

Bail hearings for the seven remaining girls still in custody continue this month, with one scheduled on Jan. 20.

Jennifer Pagliaro is a Toronto-based crime reporter for the Star. Follow her on Twitter: @jpags