Know the rules about publication ban before covering the courts

This is the final part of a weekly four-part series on legal issues journalists should be cognizant about as they embark on their careers. Read Part 1 on anonymous sourcesPart 2 on privacy and Part 3 on trespass.

This is the final part of a weekly four-part series on legal issues journalists should be cognizant about as they embark on their careers. Read Part 1 on anonymous sourcesPart 2 on privacy and Part 3 on trespass.

By Thomas Rose, Law Editor

In November 1999, Jack Ramsay was convicted of attempting to rape a 14-year-old girl while he was an RCMP officer in Saskatchewan 30 years earlier. He was sentenced to nine months’ imprisonment.

At the time of his conviction, Ramsay was a member of the Reform Party and a Member of Parliament. On the day Ramsay was sentenced, a CBC reporter interviewed the complainant in the case. She insisted that her name and her picture be used in the story, even though the courts had previously issued a publication ban on such information.

The CBC published the woman’s name and was charged with violating the ban. In its defence, the CBC argued that victims should have a say in whether their identities are shielded, and if they agree to reveal their identities despite a publication ban, a journalist should not be liable for ignoring the ban.   

The court disagreed and fined the CBC $2,000. 

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Statutory and Non-Statutory Publication Bans

Publication bans have always been controversial legal devices that many in the media have called little more than gag orders that hinder a journalist’s obligation to keep the public informed. While critics suggest such bans are affronts to the principle of openness and a violation of the Charter right to freedom of expression, the courts have held that the right of an accused to a fair trial under the Charter is equal to freedom of the press or freedom of expression, especially when there is a real and substantial risk to that right.

Courts will restrict the reporting of information that might prejudice a suspect’s ability to mount a defence, such as past criminal records, confessions or aspersions about a defendant’s character.    

Publication bans come in two flavours—statutory bans and non-statutory bans. 

Statutory bans can be initiated at the discretion of a judge, or upon the request of a prosecutor, a defence attorney or by an accused. While a judge can refuse a prosecutor’s request to impose a ban, a request from a defence attorney or an accused cannot be refused. Statutory bans are used to protect the identity of juveniles, witnesses and victims of crime, especially sex crimes.  

On rare occasions, a statutory publication ban will be imposed automatically. For example, journalists are prevented from publishing any confession or admission by a suspect made at a pre-trial hearing. Not only is this ban is automatic, it is also not likely to be formally mentioned in court, which means all journalists need to be cognizant of this fact before entering the courtroom.

A second instance in which a statutory ban is automatic is at the trial stage. Section 648 of the Criminal Code states no information regarding any portion of the trial at which the jury is not present “shall be published “before the jury retires to consider its verdict.” A jury will be removed from the courtroom during what is called a voir dire, in which a judge determines the admissibility of evidence, such as a weapon seized using a search warrant or incriminating statements made to police. 

Non-statutory bans are a category of restrictions known as judge-made bans, which means the decision on whether to restrict and to what extent the media can publish information is determined on a case-by-case basis. While judges have discretion in this area, they are not without guidelines. The case that has had the most influence in creating the test all courts now apply when considering whether to impose a judge-made publication ban is Dagenais v. CBC. It is a case all reporters need to understand.

Dagenais v. CBC

In 1994, the Supreme Court of Canada took up a case involving former and current members of a Catholic religious order who were charged with physical and sexual abuse of young boys in their care at training schools in Ontario. Earlier, the four men had applied to a superior court judge in Ontario for an injunction restraining the CBC from broadcasting a miniseries called The Boys of St. Vincent, which depicted the sexual and physical abuse of boys in a residential school.  

The plaintiffs argued that broadcasting the program would severely undermine their right to a fair trial. They also sought a general publication ban across all Canadian media preventing the dissemination of any information relating to the proposed broadcast of the program. The plaintiffs also sought a ban on any mention of the fact they were even seeking a ban.

At the time of the hearing, the trials of the four respondents were being heard or were scheduled to be heard in the Ontario Court of Justice (General Division) before a judge and jury.  

The superior court judge granted the injunctions, prohibiting the broadcast of the miniseries anywhere in Canada until the end of the four trials. It also granted an order prohibiting publication of the fact of the application or any material relating to it. The decision was immediately appealed by the CBC. The Ontario Court of Appeal affirmed the lower court’s decision, but limited the scope of the ban to Ontario and the broadcast range of CBC TV in Montreal. It also reversed the order banning any publicity about the proposed broadcast and the very fact of the proceedings that gave rise to the publication ban.

While the CBC could claim a partial victory, it wasn’t a complete victory and an appeal was filed with the Supreme Court.

In a 5-3 decision, the Supreme Court set aside the entire publication ban, allowing the CBC not only to report about the ban itself, but also to air its program nation-wide.

So, why was this case important? It was significant because the high court broadened the rights of the media in the face of publication bans, but it also introduced a clear, two-pronged test against which all other requests for publication bans must now be measured.

The court held that even when a publication ban is not statutory—that is, when the decision to grant or deny a request is left to the discretion of a judge—the decision must still be taken in consideration of the Charter of Rights and Freedoms, especially the right of freedom of expression and freedom of the press.

This is significant because for the first time, the Supreme Court was telling all lower courts that where a matter is left to the discretion of a judge, that discretion is not absolute. 

So, what are the two prongs of the Dagenais Test?

Well, the first prong actually has two parts to it. The first part states that a plaintiff must show that such a ban is necessary in order to prevent a real and substantial risk to the fairness of a trial. The second half of the first prong to this test is that in addition to showing that a ban is necessary to prevent a real and substantial risk to the fairness of a trial, the plaintiff must show that such a risk exists because reasonably available alternative measures will not prevent the risk.

Directing the courts to consider reasonable alternatives allows for a certain degree of negotiation or compromise as to the exact nature of a publication ban. For example, a ban might be applied on media only in those communities where the right to a fair trial was at risk. Other measures might include placing a time limit on the ban imposed or allowing the media to remove any elements of a story that might identify a plaintiff before publishing. 

If there are no reasonable alternatives, then and only then does the court move on to the second prong, which requires that the benefits of the publication ban must outweigh the damage to the free expression of those affected by the ban. In other words, the ban must be as limited as possible and there must be proportionality between benefits and harm.

Dagenais and the Internet

In December 2007, Robert Pickton was convicted of killing six of 48 missing women. At trial, evidence revealed that the B.C. pig farmer would lure prostitutes to his pig farm, kill them, butcher them and then feed their remains to his pigs. A publication ban was placed on evidence during the trial in order to protect the victims’ families as well as to dampen the growing anger in the community toward Pickton, even though he had yet to be convicted.

During the trial, however, the Dagenais Test and the whole notion of publication bans was seriously challenged when bloggers in the U.S., and even a mainstream news organization, Associated Press, began publishing details of the evidence, thereby breaking the ban.

In the Dagenais case, then chief justice Antonio Lamer noted that the Internet creates considerable difficulties for those who seek to impose a ban as well as on those who must enforce such bans. 

While the Internet makes it more difficult to enforce publication bans, it is not impossible. During the Pickton trial, the CBC was convicted of violating the ban when it published material on its website identifying an undercover police officer involved in the investigation. 

On the other hand, in 2012, the federal government announced it was lifting a ban on the publication of early election results that had stood since 1938. The purpose of the ban was to prevent Western Canadian voters from knowing results from the Atlantic provinces before casting their ballots. In making the announcement Tim Uppal, then minister of state for democratic reform, said the ban no longer made sense in an era of “widespread use of social media and modern communications technology.”  

Bottom line:  publications bans happen, and they can happen under a variety of circumstances, many more than have been described here. As a journalist, you are obligated not only to be aware of when a ban is sought and imposed, but also the conditions of such bans and whether they change as the judicial process unfolds.