The use of a publication ban to protect the fair-trial rights of an accused person headed into weird territory when a group of men being held in solitary confinement tried to lay bare their conditions of detention.
The accused terror suspects want to have their habeas corpus application heard in open court.
But on May 11 a judge has banned publication because the case will be heard at the same time the court reviews an earlier decision denying them bail.
That bail review is likely to delve into details of the Crown’s case against them – evidence that normally can’t be published before a trial because of concerns it could taint a jury.
But Sanjeev Anand, a law professor at the University of Alberta, said extending the ban to cover the habeas corpus proceeding is “an incredibly cautious approach,” perhaps overly so, because it’s highly unlikely evidence about the accused men’s conditions of imprisonment will be part of any future trial.
Their jail conditions are something the public deserves to know about today, he said.
“In cases like these, we need the public scrutiny. The state is holding and wielding enormous power over these individuals,” Anand said in an interview yesterday. “We need to know … is it doing so fairly or unfairly?”
Alan Young, a criminal law professor at Osgoode Hall Law School in Toronto, said people usually resort to habeas corpus only when they’ve been pushed to the brink, a point where they’re alleging the government has acted illegally in depriving them of their liberty.
“This is where the public’s right to know becomes very powerful,” Young said. “We … want to know if this individual’s detention is being done legally and by the books.”
The application will also force the government to justify their detention, he said.
Young said there seems to have been an “ebb and flow” to the notion of open justice in Canada in the past decade.
On the one hand, there have been “celebrated cases” in which the Supreme Court stated in “very powerful” terms that publication bans should be rare. But later, the 9/11 attacks infused the justice system with a different dynamic, one that places a premium on “secrecy and intelligence gathering.”
“There’s a real delicate tension right now in the law between the institutional principle of erring on the side of publication and our interest in combating terrorism, which says err on the side of secrecy,” Young said.
“For the past four to five years, the public has been left in the dark and it’s starting to look as if there’s a problem in developing practices or patterns in terms of secrecy.”
Anand, who specializes in criminal law and freedom of expression, thinks the media can be trusted to distinguish between evidence dealing with jail conditions and evidence against the accused, which can’t be published until a trial. “We have tended in Canada, in general, to overuse publication bans.”
The Toronto Star, May 12, 2007. Republished by permission.