Supreme Court upholds blanket publication ban for bail hearings

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Decision a defeat for media outlets, court rules against possible publicity that could taint an eventual trial

A pedestrian walks past the Supreme Court of Canada in Ottawa on Thursday June 10, 2010.

A pedestrian walks past the Supreme Court of Canada in Ottawa on Thursday June 10, 2010. Sean Kilpatrick/The Canadian Press

Toronto Globe and Mail

Kirk Makin

Globe and Mail Update Published on Thursday, Jun. 10, 2010 10:03AM EDT

 Last updated on Thursday, Jun. 10, 2010 7:22PM EDT

The Supreme Court of Canada came to the defence of the criminally accused today, upholding the constitutionality of blanket bans that prevent the publication of information at bail hearings for accused criminals.

In an 8-1 ruling, the majority said that the premature publication of details about police and Crown allegations would endanger the rights of individuals who are presumed innocent. They said it would also force their lawyers into conducting a public relations battle at a time when they need to apply themselves to more important tasks.

“Accused should be devoting their resources and energy to obtaining their release, not to deciding whether to compromise liberty in order to avoid having evidence aired outside the courtroom,” Madam Justice Marie Deschamps wrote for the majority.

The decision was a major disappointment for media outlets, which argued that the bans are an unnecessary restriction on the free flow of information in the Internet age.

The decision affects thousands of criminal proceedings each year, since a bail hearing is generally the first occasion where evidence allegedly linking a defendant to a crime is revealed by the Crown.

Publication bans at bail hearings are mandatory if sought by the accused, and discretionary if sought by the Crown.

Dean Jobb, a journalism professor at the University of King’s College in Halifax, said he was disappointed that bans will continue to be imposed in many cases that will never be heard by a jury.

“The intent of the law is to prevent people who might become jurors from hearing information and evidence that could prejudice them against a suspect long before trial,” Prof. Jobb said. “If there’s no jury, there’s no longer a need to keep the public in the dark.”

He said that the public will continue to be obliged to speculate, second-guess, and sometimes become outraged, about bail decisions. “So these rulings not only fail to make our courts more open to public scrutiny, they could undermine public confidence in the justice system,” he said.

Thursday’s decision came in the form of two publication ban cases that tested a freedom of expression guarantee in the Charter of Rights and Freedoms.

In one of the cases, Michael White — an Edmonton man charged with murdering his wife — applied for a publication ban at his bail hearing. The murder had been particularly high profile in the Edmonton area. There was a sustained public backlash after Mr. White was granted bail without any public dissemination of the judicial reasoning behind the decision.

The CBC challenged the constitutionality of the Criminal Code provision that authorizes the ban. CBC won at the lower court level, but the Ontario Court of Appeal allowed Mr. White’s appeal.

In the other case, the Toronto Star challenged the same 1976 provision in relation to bail hearings for 17 adults and young people arrested in 2006 for terrorism-related offences in the Toronto area.

Judge Deschamps said that bans are not absolute, and permit the media to publish the identity of the accused, comment on the facts and the offence with which the accused has been charged and for which the bail application has been made, and report on the outcome of the application.

“Journalists are also not prevented from informing the public of the legal conditions attached to the accused’s release,” she said. “The ban ends when the accused is discharged after a preliminary inquiry or at the end of the trial.”

“Although information revealed at the bail hearing may no longer be newsworthy by the time the media can release it, the ban cannot be said to impair freedom of expression more than is necessary,” the majority said. “The ban may make journalists’ work more difficult, but it does not prevent them from conveying and commenting on basic, relevant information.

The sole dissenting judge, Madam Justice Rosalie Abella, said that the public cannot be expected to wait years, in some cases, to hear why some accused were or were not deemed safe enough to be released on bail.

“Public confidence in the justice system requires relevant information delivered in a timely way,” she said. “A mandatory ban on the evidence heard and the reasons given in a bail application is a ban on the information when it is of most concern and interest to the public.

There was an added wrinkle in the terrorism cases. Police had held press conferences to announce the arrests and details of the alleged plots had been disclosed and widely reported. In addition, some of the accused men wanted details of the allegations against them to be published.

An array of media organizations supported the challenges, arguing that automatic publication bans place an unwarranted cone of silence over proceedings that ought to be open to public scrutiny from the earliest possible stage.

They argued that the publication ban provision is based in deep, unjustifiable skepticism about whether jurors can distinguish between real evidence and pre-trial publicity. They also argued that the vast majority of criminal cases never end up before a jury, making the whole question of pre-trial publicity academic.

The media lawyers argued that concerns about pre-trial publicity could be met if judges were allowed to exercise discretion and decide on a case-by-case basis.

However, lawyers for the federal, Ontario and Alberta governments argued that publication bans are time-limited, and are essential to avoid pre-trial publicity that could taint an eventual trial.

The judges had to balance free expression and the realities of the Internet age with the possibility that unproven evidence against an accused will go unchallenged unless defendants defend themselves in public prior to their trials.

Join the Discussion:

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6/10/2010 10:13:28 AM
Rather than the ban being based on whether the juries can distinguish evidence in court and the abuse of journalistic privilege, I think the ban says more about the fact that the press has become little more than a muck-raking bottom feeder that doesn’t care about accuracy so long as they can get people to read the articles.

I’d say ban all press coverage, or at least blank out the names, until people are actually found guilty. The press seems to be the final bastion (along with certain right-wingnuts) who don’t understand the concept of “innocent until proven guilty”. I tire of the constant “trial by the press” we have here. Peoples names are NOT relevant to the progress of a trial, and people are innocent until proven guilty in a court of law!

 

 
6/10/2010 10:32:34 AM
The SOC once again emphasizes that the peons who pay their wages must be treated like irritating children.
Now you know why in the US judges at the state level are required to be voted into office – unlike ours who are appointed under The Old Pals Act.

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6/10/2010 10:35:03 AM
Dear G&M Editors,

“The Supreme Court of Canada has upheld the constitutional of blanket bans…”

I think the word you meant is ‘constitutionality’

 

 
6/10/2010 10:39:27 AM
Once again, Globe and Mail, great job with the proofreading:

The Supreme Court of Canada has upheld the constitutional[ity] of blanket bans …

… since bail hearing[s] are generally [the] first occasion where evidence allegedly linking a defendant to a crime is revealed …

Michael White – and [an] Edmonton man charged with murdering his wife – applied for a publication ban at his bail hearing.

… the Toronto Star challenged the same 1976 provision in relation to bail hearings for 17 several adults and young persons were arrested in 2006 [huh??]

Police had held press conferences to announce the arrests [arrest] details of the alleged plots …

In some cases the quality is so poor I’m not even sure what you’re trying to say. I thought you required at least a grade 8 education of anyone applying to be a reporter?

 

 
6/10/2010 10:39:35 AM
Good for the Court!

The number of posts on this site parroting Harper government claims is clear evidence that many people cannot distinguish between real evidence and publicity.

 

 
6/10/2010 10:44:39 AM
This court has never had any regard to the constitutional right of press freedom. It prefers instead that justice be conducted behind closed doors.

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6/10/2010 10:52:14 AM
The same as the ban is applied to reporting of the evidence, so should the police be banned from holding a press conference to deliver a one sided dog and pony show where they slander the accused in what is nothing more than grandstanding.
 

 
6/10/2010 11:16:53 AM
There is no need to know details until a conviction has been won. A few cases in recent times have made me very angry at the media – it is very clear that they are often more concerned with shucking product rather than good reporting. Fewer lives will be ruined with this ban – for we all know what happens when somebody is falsely accused and their name plastered all over. The taint remains and in many cases is very destructive.
 

 
6/10/2010 12:24:52 PM
Must be lots of lawyers reading this one, thumbs down for anything than suggests accountability.

For the few non-lawyers. We have a for profit justice system and the industry will always push for more secrecy band less accountability.

I’ve sat in courts that we delayed after lunch for a little extra sobering up time. Must be harsh, 4 hrs a day for little more than half a year. Pretty good deal for the ones that never even went to law school. Oh ya, lol. Didn’t you know, the bench is one of those partisan appointment areas. Yes the judge hearing your case might be some drunk buddy saved for some time then get caught.

This is what happens when a $40m theft is given special status as being good for the country.

The chief justice recently described the Charter as a white painting only those on the bench could read. A very blatant attempt at putting their decisions as something off world and not to be questioned.
Might want to clean the rats nest out of vermin rather than bringing down the cone of silence.

Canadian Bar Association, biggest crime family in Canada.

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6/10/2010 12:24:55 PM
Good, there is nothing worse than being convicted by the public because of media before the courts convict you.

It is about time.

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6/10/2010 12:49:14 PM
Moderator’s Note: I voted none of the above’s comment was not consistent with our guidelines and has been removed.
 

 
6/10/2010 12:56:28 PM
good ruling – now we need one that bans police, prosecutors, mps , mla, – anyone in the justice system from writing tell all books
 

 
6/10/2010 1:02:17 PM
A bit off topic, but the photo is superb that goes with the article.

The photo is extremely well balanced, akin to a 17th century landscape painting, and with an ironic echo of the impressionist works by Monet (of women with umbrellas in fields), but in this case with a dark, grey, sombre palette enveloping the umbrella bearer.

A plus grade for photography, Globe and Mail, well done.

 

 
6/10/2010 1:02:47 PM
I voted none of the above
6/10/2010 12:49:14 PM
Moderator’s Note: I voted none of the above’s comment was not consistent with our guidelines and has been removed.
=======

roflmao,,, publication ban

 

 
6/10/2010 1:03:34 PM
If we didn’t have lawyers…. we wouldn’t need lawyers.
 

 
6/10/2010 1:10:08 PM
I voted none of the above
6/10/2010 12:49:14 PM
Moderator’s Note: I voted none of the above’s comment was not consistent with our guidelines and has been removed.
=======

roflmao,,, publication ban

Here’s the deal and I would say this to his face if I knew which end it was on.

Michael Thornton took on a legal aid case and when he found out he used the courts to steal enough child support money to bring his legal aid rate up to his trial rate.

Delete the truth as many times as you like. He knows who I am, never farther than a few doors down. Let him deal with the truth coming out.

 

 
6/10/2010 1:36:56 PM
criminals give up their “rights” when they commit a crime. public has a right to know, to keep themselves safe and make better decisions for their family (ie. child molester moving into their neighbourhood, etc.)…
 

 
6/10/2010 1:37:10 PM
So, wimpy G&M, which of the three sketches was the most accurate? What turds the G&M are.
 

 
6/10/2010 1:40:34 PM
“criminals give up their “rights” when they commit a crime. public has a right to know, to keep themselves safe and make better decisions for their family (ie. child molester moving into their neighbourhood, etc.)… ”

==========================

A good argument in a world where every person charged with a crime is actually guilty.

However, on THIS planet, people do get wrongfully accused, and prejudicing potential jurors is unfair to those people.

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6/10/2010 1:45:03 PM
Facts

A publication ban will only limit the responses to publication. Looking past the partisan venom responses to articles on the economy are mostly mocking the author or the content. The voices of the public that isn’t buying fresh packages used hay sold as new. Put that in the context of public opinion of the courts and it would be a constant bombardment similar to mine or comments that concern old fools.

This is more about using gags to preserve the dignity of the courts than it is about jurisprudence.

bite me,,, government has care and control, where is the control, where is even the care??

 

 
6/10/2010 1:49:53 PM
9 fools that could be replaced with anyone who has a speck of common sense
 

 
6/10/2010 1:59:37 PM
@Hey Now:

You`re innocent until proven guilty…then you`re guilty. I`ll admit there probably are some wrongfully convicted people but these are the vast majority.

I can only think of a handful of people in over the last 30 years who`ve been wrongfully accused of murder. It`s terrible when it happens, but in any balanced legal system, it`s bound to happen.

We aren`t like China where you`re guilty until proven innocent but prejudiced juries will always happen and its up to the judges and the defence attorney to make sure they dont base their decision on this prejudism.

 

 
6/10/2010 2:05:02 PM
This is a good decision, stop the gossip mongerers and voyeurs.
 

 
6/10/2010 2:05:26 PM
Since comments are always closed on stories about witnesses wearing niquabs, I’ll share my views on that here.

It’s F#$%in’ CRAZY!

How on earth are judges and jurors supposed to assess the credibility and demeanor of a witness whose face is concealed from them??

Stuuuupid!

 

 
6/10/2010 2:08:30 PM
Oh dear and heaven forbid that the media was disappointed! I can’t begin to count the number of times I have been disappointed by their antics esp. their invasion of people’s privacy and their hyperbolic headlines.
 

 
6/10/2010 2:21:01 PM
Doctor Demento

6/10/2010 1:02:17 PM
A bit off topic, but the photo is superb that goes with the article.

The photo is extremely well balanced, akin to a 17th century landscape painting, and with an ironic echo of the impressionist works by Monet (of women with umbrellas in fields), but in this case with a dark, grey, sombre palette enveloping the umbrella bearer.

A plus grade for photography, Globe and Mail, well done.

—-

Agreed. It’s a beauty. Well done to Sean Kilpatrick from the Canadian Press.

 

 
6/10/2010 2:34:16 PM
“Decision a defeat for media outlets, court rules against possible publicity that could taint an eventual trial”

—-

Interesting way to spin it. How about:

Decision a win for potential media victims, court rules against inevitable publicity that would taint an eventual trial.

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6/10/2010 2:52:02 PM
Angry West Coast Canuck 6/10/2010 10:13:28 AM
“I’d say ban all press coverage, or at least blank out the names, until people are actually found guilty.”
—————-
This is already the case in at least some european countries. They report “31-yr old male from xxxx” or “56-yr old female secretary from xxx”.

They reason that if the accused is found not guilty, they should not have their reputation tainted.

There are exceptions, sometimes in high profile cases, but I don’t know what these are. In any case, it’s the exception rather than the rule.

 

 
6/10/2010 2:53:02 PM
The media reports there is a “public backlash”… who decides if and what is a public backlash? Define that please? What does that look like? Or is it another manufactured story for public consumption to sell ad time?
 

 
6/10/2010 2:54:10 PM
In our system is not he saying ” Innocent Until Proven Guilty in a Court of Law ” mean anything . That includes NOT spouting off non proven ” evidence” in a newspaper that more and more becomes a gossip column spewing out ” interesting stories ” for the almighty dollar and not for the truth . As a retired journalist has said , ” When he started in his trade , newspapers were B$ Filters . ” Now they are B$ Carriers .
 

 
6/10/2010 3:03:20 PM
The intent of the law is to prevent people who might become jurors from hearing information and evidence that could prejudice them against a suspect long before trial,” Prof. Jobb said. “If there’s no jury, there’s no longer a need to keep the public in the dark.”

Since bail hearings are heard before any election as to mode of trial is made, this is a silly comment, and it is poor journalism to quote someone who is so obviously ignorant about how the
criminal law process actually works.

 

 
6/10/2010 3:15:15 PM
Bazza– elected judges? Really?

Given that part of a judge’s role is to ensure that the majority will doesn’t run roughshod over individual rights, do you not see a problem with having them be directly accountable to the majority? There’s every reason to protect judges who make principled but unpopular decisions. If not, we’re a mob.

 

 
6/10/2010 4:08:24 PM
In view of the irreparable damage done to the reputation of an accused even where a person is acquitted of charges, I would favour closed proceedings and a publication ban at all stages of a prosecution–from arrest to conviction, with details being released only where an accused has been convicted–unless otherwise requested by the accused.
 

 
6/10/2010 4:47:38 PM
Americans don’t have a problem – and since Canadians are much smarter, compassionate and timid than Americans, it surely wouldn’t be a problem here.

“DMaccan

6/10/2010 3:15:15 PM
Bazza– elected judges? Really?

do you not see a problem with having them be directly accountable to the majority?”

 

 
6/10/2010 5:02:45 PM
I’m a Canadian reporter who lives in the U.S.

I guess I’ll keep living here, where people seem to understand that it might be valuable to know details if someone in their community is accused of a serious crime. (Beyond that, Americans truly understand the value of free speech, and would never let a court restrict them to what it thinks is “basic and relevant”).

 

 
6/10/2010 5:12:28 PM
DMaccan
6/10/2010 3:15:15 PM

Given that part of a judge’s role is to ensure that the majority will doesn’t run roughshod over individual rights.
============
Wrong, that is governments job and in 1987, after Charter enactment, the SCoC ruled fathers have no rights. A judge is on the bench to decide if a law has been broken while ensuring nothing comes in the way of serving justice.
Quite trying to make useless arguments in a feeble attempt to defend the thoroughly corrupt justice industry. Justice was replaced by profit with the Charter of Rights replacing common law.

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6/10/2010 5:18:56 PM
More of our retarded socialism at work here!! We need help!!
 

 
6/10/2010 5:46:46 PM
All you need to make the trains run on time are secret trials.

 

 
6/10/2010 6:16:27 PM
@Bazza–
first time I’ve heard of the American criminal justice system held up as an example. Florida v. BNS comes to mind– the Florida Court caved to public pressure, and held a Florida bank in contempt, because an unrelated international branch of that bank was obeying local privacy law by not disclosing client information to the Florida police.

@Voted–

I can’t really follow you, there. The legislature is there to serve the majority will– that’s the principle of democracy. The same body can’t simultaneously check its own authority. The courts are there as that check and balance.

As for the rest of your post, the Charter came in in ’82, not ’87. There is no jurisprudence that says the “father has no rights”. If anything, recent family cases have challenged the presumption that young children belong with their mother. That said, most of the rights (child support, etc.) are the CHILD’s right, and not the right of either parent. None of that has anything to do with criminal justice, mind you.

Lastly, the Charter does not obliterate the common law. The common law interprets the Charter. We used to reject coerced confessions by common law. Now we do it under s. 7 of the Charter.

 

 
6/10/2010 6:21:20 PM
I agree with SCO because of what happens in the US. An act of justice should not be a political act.
 

 
6/10/2010 6:58:00 PM
DMaccan

The legislature does not need to check its own authority, nor do the courts, the people do that. Besides Germany tried that, the only got the trains running on time.

“the Charter came in in ’82, not ’87.”

Yes, after the Charter was enacted the SCoC ruled in 1987 that fathers, (individuals), have no rights. Refer to article I wrote a decade ago, “Say It Ain’t So”. It was a popular enough article to get chanted across the aisle.

Your wrong about changing. We currently have a record number of parent denied children that has resulted in Vancouver’s latest title, Gang Capital of the World for having more gangs per capita globally.
“That said, most of the rights (child support, etc.) are the CHILD’s right, and not the right of either parent.”
The majority of child support paid for the poorest families is put directly into the provincial coffers, where it stays. Commonly called the non-custodial parent tax, (NCP tax) lol, you really don’t know a thing about how these criminals work in broad daylight do you.
They lie a lot. I had a single parent MC tell me child support is a responsibility, visitation is a right that needs to be earned. I reminded her visitation is the childs rights so I wondered what the child did to “earn” visitation with the nco.

The gang capital of the world is the result a corrupt system, it is so a criminal matter.

 

 
6/10/2010 8:30:28 PM
I agree with the decision. I find that the media in its drive for sensationalism often gives its own interpretation to the facts. This can affect the ultimate outcome. We all want justice to be fairly applied.
 

 
6/10/2010 8:52:05 PM
parklane
6/10/2010 6:21:20 PM
I agree with SCO because of what happens in the US. An act of justice should not be a political act.
===

Courts have to be open and transparent courts to be democratic. The secrecy you advocate is defined as communism or even fascism. Not sure your train will ever come in on time.

 

 
6/11/2010 6:13:23 AM
It’s a big defeat for the public’s right to know.
 

 
7/4/2010 9:07:04 PM
http://seminal.firedoglake.com/diary/56061
Senator Lieberman’s proposed law would put the USA’s homeland security in control of the internet. Homeland security could shut down your network, or any other network that meets the definition of a “potential threat”
PCNAA, or “Protecting Cyberspace as a National Asset Act” is just the kind of bullsh!t that I expect from overpowered globalist motherfuckers like Lieberman. One word. Wikileaks. Two Words. “Collateral Murder”.
Should be called “making internet safe for bad government.”
CNET.com seems to have the best reading. Read The FIRST CNET article and the SECOND
Oh! almost forgot. The press is calling this an “internet kill switch”
One more thing, The bill could also expand wiretapping as homeland security will install it’s systems onto your network. Obvious to me anyhow.
Thx for reading FDL people!

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