Captive in Canada

Publication bans violate constitution: media outlets

Source: Toronto Star - 5-may-08

By Tracey Tyler

Mandatory publication bans have turned Canada’s bail courts into a secret justice system and are preventing the public from knowing why five terror suspects - implicated in an alleged plot to blow up Parliament - are free on bail, the Ontario Court of Appeal was told Tuesday.

Given that police described the “Toronto 17″ as a serious threat following their arrests in June 2006, the public could legitimately question why some have been released and may wonder if the case isn’t “all it was cracked up to be,” said Paul Schabas, a lawyer representing several media outlets.

But the flow of information stopped “cold turkey,” thanks to a Criminal Code provision requiring that publication bans be imposed automatically at bail hearings at the request of an accused person, Schabas told a five-judge panel hearing a constitutional challenge to the legislation.

“Once this case went into the courthouse in Brampton, it went under a cone of silence, a cloak of secrecy, and in spite of all the (police) statements about this case and how serious it was … five accused were released and the public is not allowed to know why,” he said Tuesday.

“And shouldn’t they know? Why is somebody out on our streets who was supposedly so dangerous, out in training camps, training to blow up buildings?”

The court is being asked by the Toronto Star, the CBC, CTV and The Associated Press to find the bans a violation of freedom of expression under the Charter of Rights and Freedoms and substitute a system that would allow for discretionary bans, in cases where an accused person can demonstrate a ban is necessary.

Crown counsel John North argued the existing system of automatic bans is necessary to protect fair trial rights and ensure bail hearings take place expeditiously.

Someone just arrested and taken to court is in no position to do battle with media lawyers on whether their trial would be prejudiced by reports from their bail hearing, which might include details of any criminal record, mental illness and, in some cases, a confession, he said.

“In some cases, accused people will be prepared, I submit … to forgo fair trial interests and say, `I just want to get out of this place (jail). I don’t want to spend thousands of dollars litigating with the media,”‘ North argued.

But Schabas suggested requests for bans will quickly become the exception because it will be difficult to show they’re necessary.

Mandatory bans can’t be rationalized as a way of shielding jurors from pre-trial publicity because the vast majority of charges - 99 per cent - never come before a jury, he said.

The appeal panel is being asked, in effect, to overrule a 1984 decision of the court that upheld the mandatory bans.

The case was brought by Global News, which wanted the right to report on a bail hearing for Cathy Evelyn Smith, accused of killing comedian John Belushi.

At the time, the court said fair trial rights are “fragile” - “like Humpty Dumpty,” possibly beyond repair once shattered - and trump the media’s right to report on court proceedings.

But that case was decided before the Supreme Court even considered the scope of freedom of expression under the charter and before it ruled there is no “hierarchy of rights” giving the interests of accused people priority over the principles of open courts.

Schabas suggested that news reports on a bail hearing are likely to be forgotten by the time a case gets to trial, further diminishing the potential for prejudicing a jury.

But Justice John Laskin, who’s heading the panel, suggested that wouldn’t hold true in high profile cases, where “the press will repeat what went on at the bail hearing (up until) just before the trial.”

Schabas argued that if media outlets currently published prejudicial information just before a trial, they would be prosecuted for contempt of court.

Related: Toronto 18

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