The Supreme Court of Canada has denied an appeal by several media organizations that sought to remove a Criminal Code provision making a publication ban on the proceedings of bail hearings mandatory if the defence requests it.

The decision, written by most of the justices with Justice Rosalie Abella dissenting, argues that while the ban limits freedom of expression, that limit can be justified by the goals of ensuring expeditious bail hearings and safeguarding the right to a fair trial. “The ban prevent dissemination of evidence which, for the sake of ensuring an expeditious hearing, is untested for relevance or admissibility,” says the decision.

The decision notes that the publication ban provided for in Section 517 of the Criminal Code is not an absolute one – it allows the media to publish the identity of the accused and to comment on the facts and the offence with which the accused has been charged – and that other information that is subject to the ban during the bail hearing will be publishable later.

In her dissenting opinion, Justice Abella argues that the mandatory ban does not strike the right balance between positive and negative effects, and should be replaced with  a provision giving the justice of the peace discretion to order a publication ban depending on the circumstances.

The Supreme Court judgment is available online at http://scc.lexum.umontreal.ca/en/2010/2010scc21/2010scc21.html.

The appeal arose from two cases. In one, Michael White of Edmonton, charged in the high-profile murder of his wife, applied for a publication ban at his bail hearing. The other concerned the 17 people charged with terrorism-related offences in the Toronto area in 2006.