Bans on the run

By Dean Jobb
More than a dozen Ontario men are accused of plotting bombings and other terrorist attacks, including a threat to behead the prime minister. An Edmonton man who pleaded for the safe return of his missing, pregnant wife is charged with her murder.

Both stories made headlines across the country – for a few days, at least. Reporters and editors knew that, the moment each case reached the courts, news about it would all but vanish.

A judge would ban publication of information presented at the suspects’ bail hearings. A similar ban would shield evidence tendered at the preliminary hearing stage of the prosecutions. Journalists could attend and report that the hearings were held, but little else. Years later, at trial, the rest of the world would be let in on the secret.

Our criminal justice system is premised on the belief that, while the courts are open, publication bans are justified to suppress pre-trial proceedings. Revealing evidence early on in a prosecution, so the argument goes, could prejudice the defendant’s right to a fair trial and taint the jury’s verdict.

But it’s time judges and legislators admitted some inconvenient truths: there’s little evidence that pre-trial reporting influences verdicts; jury trials have become less common in criminal cases, even for serious offences like murder; and the outdated “you-can’t-handle-the-truth” approach undermines public confidence in the justice system.

The guarantee of freedom of the press in the Charter of Rights and Freedoms has been used to rein in discretionary bans – orders judges pull out of thin air in situations where there is no statutory authority for banning publication. The Supreme Court of Canada’s 1994 Dagenais precedent dictates that such bans be limited in scope and granted only if there is no alternative to curbing media coverage.

The Criminal Code, meanwhile, contains mandatory bans that leave no room to consider the media’s right to cover the courts. If a defendant requests a ban on a bail hearing or preliminary inquiry, for instance, the judge must impose it.

But two recent rulings suggest the days of the mandatory publication ban are numbered.

Last June, in a ruling tied to the prosecution of Michael James White of Edmonton for the murder of his wife, an Alberta judge struck down the mandatory publication ban on bail hearings as a violation of the Charter (R. v. White, 2007 ABQB 359). The provision, Justice C.S. Brooker found, erodes public access to the courts and makes it tough for citizens to understand who’s eligible for release on bail and why.

The ban applies to the judge’s reasons for granting bail or withholding it. The concern is that publicizing them might make the defendant look guilty, since the main grounds for denying bail are that a person is dangerous or likely to flee if released.

But Brooker concluded such a far-reaching ban does a disservice to the courts and the defendant alike. “This leads to the potential for public speculation, misunderstanding and mistrust of the justice system.” Brooker should know – after he granted bail to White, he endured a backlash from citizens and politicians who, thanks to the ban, had no idea why White’s release might be justified.

The judge was also troubled that the ban applies to all bail hearings, even when a judge will preside at the trial and concerns about media reports influencing jurors are moot.

Edmonton lawyer Fred Kozak, who represented the CBC, the Globe and Mail and the Edmonton Journal in the White case, sees the ruling is an important victory for access to the courts.

“In a case where someone will not be tried by a judge and jury, there can be no rational reason to ban evidence from a bail hearing,” he says. The same can be said for the mandatory ban on evidence presented at a preliminary hearing, which Kozak also considers “constitutionally suspect.”

Brooker was faced with expert evidence that pre-trial publicity is unlikely to influence jurors, unless it’s damning evidence like a confession or the fact the defendant was found with the murder weapon. A ban on publishing details such as these, which clearly have the potential to prejudice a case, should suffice.

“You can’t speculate that harm will follow pre trial publicity,” Kozak argues. “Only in the rarest of circumstances might pre-trial publicity prejudice an accused’s right to a fair trial.”

Brooker reworded the provision to apply only when a jury trial is possible but gave the federal government a year to remove the mandatory ban on bail hearings.

In the meantime, the fight is far from over. Brooker’s ruling is under appeal and, in Ontario, media outlets are appealing a judge’s refusal last March to strike down the ban on the bail hearings of a dozen men jailed on terrorism charges (Toronto Star Newspapers Ltd. v. R., 84 O.R. (3d) 766). That judge was following a 1980s Ontario precedent, and media lawyers want Ontario’s Court of Appeal to revisit the issue in light of recent Charter rulings expanding media access to the courts.

One or both of the cases is likely to wind up before the Supreme Court of Canada for a final ruling, one that should open pre-trial hearings to greater public scrutiny.


Dean Jobb, an assistant professor of journalism at the University of King’s College in Halifax, is author of Media Law for Canadian Journalists (Emond Montgomery Publications, 2006).