Publication Bans on Bail Hearings

Dean Jobb for The Lawyers Weekly

June 25, 2010

The Supreme Court of Canada has upheld the mandatory ban on publishing information produced at bail hearings, a ruling that bolsters the rights of criminal suspects but is seen as a setback for media access and the principle of open courts.

In an 8-1 ruling released June 10, 2010, the court concluded that suspects seeking pre-trial release should not be forced to spend time and effort fighting a secondary battle for a publication ban on information that could undermine their right to a fair trial.

Writing for the majority, Justice Marie Deschamps stressed that bail hearings can disclose prejudicial information about defendants - their bad character, previous criminal records, suspicions of their involvement in other offences - that will likely be inadmissible at trial.

And while the sweeping ban even prevents the media from reporting the judge's reasons for granting or denying bail - often sparking public outrage when offenders charged with murder and other violent crimes are released without explanation - Justice Deschamps said the need to protect the liberty rights of defendants must take precedence.

"The ban prevents full public access to, and full scrutiny of, the criminal justice process," she acknowledged. "Although not a perfect outcome, the mandatory ban represents a reasonable compromise."

At issue was a defendant's right, under a provision added to the Criminal Code in 1976, to obtain a publication ban of all information and evidence presented at a bail hearing, including the submissions of counsel and the reasons behind the judge's ruling. The hearing is held in open court and journalists can still report whether bail was denied or granted and the conditions placed on those released. And while the ban is temporary - it expires when charges are dismissed or a defendant is convicted, acquitted or pleads guilty - it may be years before the reasons for release or detention can be reported.

"Bail hearings are essentially conducted under a complete cone of silence and cloak of secrecy. We argued that this extraordinarily overbroad," says Paul Schabas of Blake, Cassels & Graydon LLP, whose client, the Toronto Star, joined other major media outlets in challenging the ban based on lower-court rulings in Ontario and Alberta.

"It's obviously a very disappointing decision because it seems to be a real step back from the whole trend toward openness that the Supreme Court has been adopting for the last 20 years, and especially since Dagenais."

Dagenais v. Canadian Broadcasting Corp., [1994] S.C.J. No. 104 holds that a defendant's Charter right to a fair trial no longer "trumps" the Charter right to freedom of the press. In the years since, the precedent has been used to win greater media access to court hearings and documents and to limit discretionary, judge-made publication bans, but the bail ban ruling suggests the court is unwilling to chip away at mandatory bans approved by Parliament.

"The court has upheld sweeping statutory bans where there may be nothing that occurs in the courtroom that could be prejudicial to an accused's fair-trial rights," Schabas told The Lawyers Weekly. "And yet in contrast we have the Supreme Court saying (in Dagenais) where there's discretion to order a ban, courts should be very reluctant to do it because such bans can rarely be justified."

Justice Rosalie Abella, who was alone in dissent, said the ban should not be mandatory because it denies public access to information about "a key aspect of the criminal justice system" and is "a profound interference with the open court principle." She believed publication bans could be dealt with expeditiously and would be an issue only in a small number of high-profile cases.

The majority overturned the Ontario Court of Appeal's finding (in Toronto Star Newspapers Ltd. v. Canada, 2009 ONCA 59) that the ban could not be justified in cases that will not be heard by a jury. According to that ruling, jury trials account for only two per cent of all criminal cases in Ontario.

"I'm not aware of any line of logic that would support a publication ban on bail proceedings where no jury trial is possible," said Fred Kozak of Reynolds, Mirth, Richards & Farmer LLP in Edmonton, who acted for the CBC in the challenge. The bail ban does nothing to stop the posting of inadmissible information about cases on Facebook and other private Internet sites, he noted, "but it does a lot to prevent members of public from knowing about bail issues and understanding them."

The challenge arose from the high-profile prosecutions of Michael James White of Edmonton for the murder of his wife in 2005 and 18 Toronto-area men charged with terrorism-related charges in 2006.

The Toronto lawyer for one of the terrorism suspects says the ban allows newly arrested defendants to "concentrate on the issue at hand" - gaining their freedom - without worrying about the publication of information that's "very preliminary" and "may be completely wrong."

Delmar Doucette says press reports no longer "disappear into the recycle bin or the ether after they're printed or broadcast. Because of the Internet, that stuff stays around forever." While the ban cannot stop online speculation, if information disclosed at bail hearings is reported in the media, it "comes with a judicial imprint that is going to give it more weight than other comment that may be in the blogosphere."

Lauren Garcia of the Edmonton firm Dawson, Stevens, Duckett & Shaigec, who acted for White, says retention of the ban in non-jury cases is "a pleasant surprise" but the media remains free to explain the factors involved in bail decisions without reporting the reasons in a specific case. "There's no publication ban on the rules of the system."

The ruling gives defendants "comfort in knowing that they're not going to have [to] deal with media applications" to challenge the ban, she added. "It's nice to not have to divert your resources."

Both Schabas and Kozak say the ruling does not bode well for a future challenge to the Criminal Code's mandatory ban on publishing evidence presented at preliminary hearings. "It appears that the court is saying that the Dagenais principles don't apply to statutory bans," said Schabas. "We'll have to wait and see."
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