Reporters face massive gag order

A wide-reaching publication ban has prevented reporters from reporting
on the details of a court appearance in Woodstock, Ont. as part of a
high-profile case involving the murder of eight-year-old Tori

The ban comes in tandem with World Press Freedom Day (today) and the release of the first annual report of free expression in Canada by the Canadian Journalists for Free Expression, which reported that 2009 was a tough year for journalists. 

A Toronto Star column by Rosie DiManno has sections redacted and information hidden from readers by large black bars. She writes:

“This carefully crafted sentence, approved by Justice Dougald McDermid — at a time and place that is also subject to strict rules of nondisclosure — is the only information that can be published or broadcast:

“As we previously reported, Terri-Lynne McClintic was scheduled to appear on April 30, 2010, in the Superior Court of Justice at Woodstock but because of a temporary publication ban, we are prohibited by court order from providing any further information until further order of the court.”

“The hand-written statement was distributed to reporters by a lawyer, Iain MacKinnon, acting on behalf of several media outlets — hired for reasons I can’t divulge.

“The reasons for this highly irregular state of concealment over charges that had already been widely reported against the two defendants indicted for murdering Tori Stafford — McClintic and Michael Thomas C. S. Rafferty — cannot be revealed.

“But for occasional procedural appearances via videolink over the past year, reported in brief digest items, these two individuals have for all intents and purposes disappeared into a black hole of nondisclosure. And now it is as if everything that’s happened most recently never happened at all — at least not for public consumption.

“Yet Woodstock residents were consuming and absorbing what did occur — if anything did occur, that is to say, which I can’t say.”

A Globe and Mail editorial opposes the ban:

Publication bans are often applied in court cases – they are routinely applied to pre-trial and bail hearings to preserve the right to a fair trial, and they are often used to shield witnesses in cases involving sex crimes. They are also used frequently to protect young offenders. These limited bans are completely justified.

But a more sweeping ban, such as the one issued by Mr. Justice Dougald McDermid in Woodstock without first hearing those who oppose it, is a danger to the rights of Canadians.

In a ruling on a key case in 1994, then chief justice Antonio Lamar of the Supreme Court of Canada wrote that “freedom of expression, including freedom of the press, is now recognized as a paramount value in Canadian society.” His guidelines made it clear that no ban should be ordered unless all reasonable alternatives are first explored.

The right to free expression is equal to the right to a fair trial, in the Charter of Rights and Freedoms, Judge Lamer wrote. That balance cannot be ignored.

At the same time, the practical reality is that in the Internet age, trying to stop the dissemination of information revealed in open court is impractical. Indeed, placing limits on traditional, responsible media may be counterproductive, as the only information available to the public will be incomplete and rife with speculation and rumour.

The extent of this ban is absurd and should be reconsidered.

A Toronto Star editorial echoes the sentiment, adding:

“Open courts, openly reported on, provide confidence to the public that justice is being done. They also provide insight into wider societal issues that are raised during trials.”

“Where publication bans have been imposed in recent times, as in the notorious Karla Homolka case in the 1990s, the press has usually been allowed to report at least the bare bones of what happened in court, while leaving out some of the details.

“In the McClintic case, with the press forbidden to relay any of the facts to the public, rumour and innuendo will replace solid reporting. And these rumours are likely to be given wide dissemination on the Web, which is much harder for the courts to control.

The Star opposes this publication ban and will argue vehemently in court for it to be lifted at some future date. (We are not allowed to tell you when that might be.)”