20 years later, public is still left out

February 25, 2015   ·   0 Comments

FROM TIME TO TIME  we hear a contention that ours is an open and transparent judicial system. However, all too often it’s just the opposite, and needlessly so.

Although bans on publication are needed in some cases to protect the identity of innocent third parties, we usually hold that it’s appropriate to identify someone charged with a crime so long as we try our best to monitor the case to determine whether the charge is dropped or the accused person is ultimately acquitted.

It’s also true that our Criminal Code has provisions allowing for publication bans during preliminary inquiries, on grounds the publicity will impede the accused’s right to a fair jury trial. However, even then an accused can ask the court to permit publication, particularly if he or she feels there is nothing to fear.

The problem is that there is always the possibility that Crown or defence counsel will seek to have publication bans that go well beyond those provided in the Code.

That’s what happened 23 years ago when four Christian Brothers stood charged with sexually abusing young boys while they taught at an Ontario Catholic school and the CBC was set to produce a dramatic mini-series based on similar abuse at Newfoundland’s Mount Cashel Orphanage.

The defence brought an application requesting that the jury either be charged before the show aired or sequestered over the weekend of the airing. The trial judge declined and instead merely directed the jury to avoid watching the show, but the day before the scheduled airing the defence won an injunction restraining the CBC from broadcasting the show and from publishing any information relating to the show until the last of the four trials were over.

The case, known as R. v. Dagenais, ended up in the Supreme Court of Canada, where the majority held  that while judges have a discretionary authority to impose publication bans on information revealed in a criminal trial, they must first weigh competing rights, such as freedom of expression and right to a fair trial, to minimize the violation of rights. It was further held that the media has a right to appeal a decision of a publication ban.

At least implicitly, the ruling meant that judges ought not impose such publication bans without hearing from the media, and that is what happens in Nova Scotia, British Columbia, Alberta and the Northwest Territories, as well as in federal prosecutions, but not routinely in Ontario.

The excuse, for what it’s worth, is that Ontario’s court system is Canada’s largest. But that hardly explains why the applicants for such bans couldn’t be required to alert the media before the ban is sought.

Instead, media outlets that learn of such bans must send their lawyers to special hearings (at their own cost) and belatedly present arguments against the bans.

That’s what happened in Brampton when a judge recently lifted her ban on identifying a Mississauga woman accused of beating her three-year-old child to death.

Instead of the sweeping ban, Justice Deena Baltman substituted one limiting the identities to those of the victim and accused, so as to protect other members of the family.

However, she went on to call for Ontario to follow the lead of the other provinces in developing guidelines for notifying the media of applications for publication bans.

As matters stand, the Ontario Ministry of the Attorney General only sometimes tips the media by email. Spokesman Brendan Crawley says they do that when directed to do so by the trial judge.

We much prefer the Nova Scotia guideline, which requires a lawyer seeking such a ban to email a notification to a list of subscribers prepared by the court.

While that would be a long list in places like Toronto, it would surely be much shorter locally and elsewhere in the province.

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