Publication Bans: A Collision of Rights and Freedoms

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Editor’s Note: I recently attended a legal hearing in Sault Ste. Marie, Ontario and it wasn’t a surprise, when yet again, one of the parties involved in the case requested a publication ban. It was even less of a surprise, when yet again, the presiding judge granted the request.

What is surprising, however, is that rarely are these publication bans challenged by the opposing party. In fact more so, both parties seem to be comfortable that a publication ban is a good call.

Publication bans can serve an important role in the judicial process. Bans prevent the identification of minors and officers involved in undercover operations or witnesses whose lives could be threatened if exposed to the public. Bans are often imposed to ensure an accused’s right to a fair trial.

There is equal value in the media’s freedom of speech and the public’s right to accessible information about the legal system. While courtroom proceedings are open to the public the reality is that members of the media are relied upon, and expected by the public, to watchdog and report back about the judicial process.

Publication bans are handed out in the courts with what seems to be at the same level of frequency that a kindergarten teacher slaps a gold star on students colouring assignments. This not only challenges media in performing their job but slides an excluding shield across the public’s view of the judicial landscape.

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The Canadian Charter of Rights and Freedom guarantee the rights of citizens to a justifiable legal rationale. In the courtroom the Charter collides at the intersection of Section 11(d) – the right to a fair trial, Section 7- the right to life, liberty and security, and Section 2(b) – the right to freedom of expression.

Section 11(d) of the Charter of Rights and Freedom states that everyone has the right ‘to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. Section 7of the Charter states ‘everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justices.’

In protecting the fundamental right of an accused to a fair trial, the court may impose a publication ban on any legal proceeding that brings forward evidence, prior criminal record or any other information that could cause prejudice among jury members.

With the roaring arrival of rapid change technology in households around the globe over the most recent decade, these publication bans do not apply to journalists and reporters alone but also to every day citizens who disclose information from the courtroom on social media platforms such as Facebook.

Section 2(b) of the Charter states that an individual has the right to ‘freedom of thought, belief, opinion and expression, including freedom of the press and other media communication’. And herein lays the crux of the ultimate power struggle between the courts and the media and at the heart of it is the public’s right to accessible information.

Both the courts and the media play vital roles in ensuring that Canadian law is upheld. The courts enforce the law and the media illuminates the judicial process. Over the course of ensuring the right to a fair trial, a publication ban gags and binds the media and slaps a thick black blindfold across the collective public eye.

There is nowhere in the Canadian Charter of Rights and Freedoms that state’s an accused has the right to a trial by an uninformed jury.

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There are two types of publication bans: 1) those mandated by the Criminal Code and other legislation eg. names of minors are not released, and 2) discretionary bans applied by the judge after consideration of exceptional circumstances.

The courts must consider an accused’s request for a publication ban but it can refuse a request from the Crown. Ifthe judge grants a publication ban then journalists are restricted to reporting only that a trial was held, if bail was granted or not and the conditions of bail.

On December 8, 1994 a landmark ruling on a publication ban in Dagenais v. Canadian Broadcasting Corporation was issued by Supreme Court Justice Lamer. Dagenais, and three other men, were members of the Catholic order- the Christian Brothers, who were charged with assaulting young boys in their care. The CBC developed a docudrama, called ‘The Boys of St. Vincent’, which was inspired by the events perpetrated by the Christian Brothers. The film was set to air before the completion of the trial.

The defence requested and received a publication ban which halted the airing of the program. However the CBC challenged the ban all the way up to the Supreme Court and won.  Chief Justice Lamer found that the ban was a violation of Section 2(b) of the Charter and that the ban was too broad. Discretionary power allows a judge to consider the circumstances of each case and on the matter of Dagenais v. CBC Lamer did not believe that the airing of the docudrama demonstrated ‘real and substantial risk’ to the process of a fair trial.

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The case of Dagenais v. CBC reinforced the judge’s responsibility when exercising discretionary power and that the requesting party must validate the necessity of a publication ban. In arguing that a publication ban justifies the loss of freedom of expression the party must demonstrate that there isn’t any other alternative means to accomplish their objective but by taking away the rights afforded in Section 2(b) of the Charter that states that an individual has the right to ‘freedom of thought, belief, opinion and expression, including freedom of the press and other media communication’.

However, the media, and the occasional courtroom groupie, have often expressed that publication bans are applied far too often. In a commendable report, Panel on Justice and the Media, prepared for the Attorney General for Ontario, participants from the media expressed, “There are too many automatic and routine publication bans, implemented without any discussion of their necessity  in the circumstances, breeding the belief that publication bans generally are normal and desirable, rather than the exceptional and only to be used when proven justifiable.”

Alan Shanoff is a freelance writer and teaches media law at Humber College. He states in his article published in Law Times News that, “The Criminal Code provides for a mandatory publication ban at bail hearings when sought by the accused. The ban is discretionary when sought by the Crown. The result of this is a publication ban in almost every bail hearing that would be of interest to the public.”

The fact that the media serves as watchdogs for the public should never be lost. Though a publication ban impedes publishing details of the trial through media outlets, including citizens who post on social media, it does not preclude a journalist, or the publics, right to attend the hearing or their right to access official court records. However, to suggest that open courtroom proceedings mitigate public ignorance and inaccessibility to information about the judicial process, presumes that the public attends court- which they do not.

Many members of the media and public, and even members of the court, argue, that it is transparency in the courts and of police procedures that ensures an accused’s right to a fair trial.

A report prepared by the Canadian Judicial Council references a Supreme Court ruling where a request for a publication ban was struck down and where the court in their ruling stated that, “…the public must be free to scrutinize and debate the tactics used in apprehending suspected criminals.  As well, the court found that openness benefits an accused person in two ways. First, it ensures the trial is conducted fairly. Secondly, media scrutiny enables the public to understand the basis for an acquittal, vindicating the accused while ensuring citizens are not left with the impression a suspect was freed on a technicality or without valid legal reason.”

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The conventional argument in favour of publication bans is simply that certain information may taint the judgement of potential jury members and risk an accused’s right to a fair trial. The argument makes some serious assumptions about the public and may raise concern regarding the efficacy of the judicial process.

It is worth noting that laws regarding publication bans can be flexible in their application. In the 2007 publication,The Canadian Justice System and the Media, the point of timing is raised. “It’s not just what you say, it’s when you say it. The rule of thumb is that the risk increases as the date of trial approaches, and is at its highest once the jury is in place. People selected for jury duty are unlikely to recall the details of media reports that appeared up to a year or more before trial.”

In his article to the Star Phoenix news, entitled Publication Ban Crime Against Democracy, Les MacPherson states, “Canadian judges seem to think that jurors are too stupid to distinguish between sworn testimony heard in the courtroom and what they might have read in a newspaper or seen on television. It is not a view that generates any confidence in our justice system. If juries really are that stupid, we might as well scrap the whole idea of jury trials and leave distinctions of guilt or innocence to our betters on the bench.”

MacPhersons incensed comment was spurred on by a March 2005 ruling where Superior Court Justice John Gomery issued a publication ban in the messy corruption scandal best known as ‘Adscam’. The hearing took place in Montreal and alleged that former Prime Minister Jean Chretien and his liberal party skimmed off funds intended to persuade Quebec separatists not to break away from Canada.

While the Canadian news outlets respected the ban American journalists and bloggers did not. Intrepid Canadians, including journalist Les MacPherson, were forced to visit, and doing so in droves, American websites to find out what was happening in their own country.

Publication bans issued by Canadian courts are enforceable only against Canadian media outlets. Professor Klaus Pohle is the Supervisor of Undergraduate Studies for the School of Journalism and Communication at Carleton University. He states that, “The internet complicates things but the law remains unchanged. Extra-territorial internet publication are just as culpable but the law can only be enforced in Canada, by that I mean the guilty party has to be physically in Canada to be prosecuted.”

There are many examples of American news sites keeping Canadian courtroom proceedings transparent to the Canadian public.

In 1993 American television networks thumbed their nose at a publication ban preventing the Canadian reporting of a murder trial in Ontario. In her article, The Blog and the Ban, Jane Kirtley writes of the trial, “American television networks defied a publication ban and reported details of a horrific murder trial in Ontario, Canadian cable operators blacked out the newscasts. Stories about the trial were deleted from editions of the Buffalo News slated for distribution in Canada, and Canadian customs officers confiscated copies of the American version at the border from people carrying more than one copy.”

Of course the horrific 1993 murder trial was that of Paul Bernardo and Karla Homolka. The publication ban was imposed on Homolka’s preliminary hearing. Whereas Homolka’s lawyers were in favour of the ban Bernardo’s lawyers were not. Homolka had been portrayed as Bernardo’s victim and his lawyers were concerned that his trial would be prejudiced by the ban on Homolka’s hearing.

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Not many would disagree that the internet has complicated matters when it comes to publication bans- whether for the better or worse is debatable.

With access to myriad social media platforms, and especially Facebook, it isn’t just journalists and reporters that must be cognizant of the laws around publication bans. It is also the public- the public that for the most part do not attend court. Even in situations where members of the public are present in the courtroom, either because they are connected in some way to the court case or not, the details of a publication ban can be difficult to understand. Add to that the many years between a bail hearing and a trial, sometimes with a lengthy preliminary trial in between, publication bans impose an excruciatingly long time on those closest to the case to have to sit on their fingers and keep their mouth shut.

In January 2010 a facebook page was started to pay tribute to a toddler that was murdered. People posted pictures, messages and theories about how the child was killed. The postings breached a publication ban imposed by the courts, issued to protect the public identity of the victim and the accused. However, after the page became public knowledge the courts lifted the publication ban. The situation raised the point that the law is struggling to keep up with advances in technology.

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While publication bans may serve to protect the identity of individuals and certain information around cases and the entire judicial process, they also prevent the public from scrutinizing the mechanism of justice. On July 24th, 2014 Bill 11 was passed in Alberta bringing an end to publication bans on naming children who have died in care of the province. Commenting on the bittersweet win, Human Service Minister Manmeet S. Bhullar, stated in part, “If we do not have the right to speak up about justice as individuals then we have taken away too much.”

Considering the hopelessness in controlling information shared across the World Wide Web; the incredible length of time to bring a trial to closure; and the flood of rumours that flourish in the absence of the facts which are far more harmful than the truth, publication bans seem to do a better job of setting up the courts for contempt of court and mistrials.

And what of the benefits of if not ridding the courts of publication bans entirely, using them as a tool of absolute last resort?

Transparent reporting of the judicial process increases the public’s trust and confidence in the law. As well the public’s informed consideration of court cases increases the likelihood of a fair trial. A direct lens upon the judicial process also creates opportunities for the public to be enlightened about determinants of crime in their community and to develop timely strategies in addressing those issues.

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