Once upon a time, there was a certain logic to publication bans

Headshot of Christie Blatchford



When at last the bail hearing for Ontario Provincial Police Sergeant Mike Rutigliano started here yesterday - there is an ongoing work slowdown at the province's jails and it is causing chaos in the courts - the first order of business was for Justice of the Peace Neil Burgess to properly rage about the nearly three-hour delay.

The second was to impose a publication ban upon the proceedings.

No surprise there: Pub bans and bail hearings in this country go together like former prime ministers and envelopes of cash.

Judges and JPs usually have no choice, for bans are mandatory when requested by defence lawyers, as was the case with Sgt. Rutigliano's lawyer, Dan Kirby, and discretionary when sought by prosecutors. Truth is, I can count on one hand the number of times a ban hasn't been imposed at a bail hearing I've been at - and one of those times, I remember, it was only because the various parties forgot to ask for it.

The prohibition is such a fixture it's like the rest of the furniture in the courtroom; everyone just assumes it will be there.

Thus it is that I can tell you nothing of what proceeded in a case that was first revealed by The Globe and Mail earlier this week - allegations of obstructing justice and breach of trust and suggestions that Sgt. Rutigliano, a Crown attorney and accused criminals were in cahoots to "defeat the course of justice," in one of the ringing definitions of the Criminal Code.

Sgt. Rutigliano is charged with nine offences - four counts of obstruction of justice, one of breach of trust, three of fraud and one of money-laundering. The latter four are related to an alleged, multimillion-dollar business fraud in which Sgt. Rutigliano is charged with three other people. They are serious enough offences, but hardly with the societal impact of the others.

The first five allegations all deal one way or another with offences against the public trust, because citizens place their faith in public officials - police, prosecutors, judges, clerks - and trust that they will play fair and square, at the least adhere to the rules that bind the rest of us and that in the justice system, everyone is if not on an exactly level playing field (money does get you good lawyering) on a reasonably even one.

Sgt. Rutigliano is a veteran police officer who managed all OPP court cases being heard in Toronto. His unindicted co-conspirator (meaning he isn't charged but is alleged to have been involved somehow in the conspiracy) is a Toronto prosecutor named Domenic Basile. Sgt. Rutigliano's newly indicted co-conspirator, charged just yesterday with conspiring to obstruct justice and obstructing justice, is none other than Frank D'Angelo, the former beer magnate who just last month was before the courts and acquitted of sexually assaulting a friend's daughter.

These allegations are a sufficiently big deal that the Ontario Attorney-General has appointed an out-of-province defence lawyer, Richard Peck of Vancouver, to act as a special prosecutor, and a retired judge to monitor the case.

This is explosive stuff and potentially shattering to public confidence in the administration of justice. The questions merely raised by the charges are unsettling: Are cases being fixed? Are prosecutors and cops playing footsie with criminals? What's going on here?

At Sgt. Rutigliano's bail hearing, which began yesterday, some, though certainly not all, of the tale emerged. Some information now under the publication ban might cause alarm, but I'm pretty sure that concerned citizens would find some comfort there, too: I can tell you none of it.

The ban is found in Section 517 of the Criminal Code. A recent Ontario Court of Appeal decision - which could end up at the Supreme Court of Canada, if the court grants leave to the media to appeal - offers a handy history of the ban.

The roots of it go back 40 years, to the 1969 Report of the Canadian Committee on Corrections, colloquially known at the time as the Ouimet Report. It recommended the code be amended to allow judges to impose a publication ban on bail hearing proceedings.

When first enacted as part of the Bail Reform Act in the early 1970s, the ban was discretionary; the language said the judge "may" impose a prohibition on publication. But within three years, the code was again amended, and the ban magically made mandatory (the judge "shall") if the accused person sought it.

As Mr. Justice Marc Rosenberg, who would have upheld the media appeal in the recent case and whose judgment includes the legislative history, noted, "There does not appear to have been any debate in Parliament to explain the reasons for the amendment."

Judge Rosenberg found that the mandatory ban violates the freedom-of-the-press section of the Charter and would have struck it down; sadly for the press (and I'd argue, for the public too), he and Mr. Justice Russell Juriansz, were outvoted.

The majority of the court, in a decision written by Madam Justice Karen Feldman, ruled that though the ban violates the Charter, its fault is that it is overly broad, and is imposed in cases that likely will never get to trial or be heard by a jury. Judge Feldman et al would leave the ban in place, but "read it down" so that it applies only to hearings on charges which procedurally can be heard by jurors.

Though there are other reasons for a publication ban, the driving rationale has always been the protection of an accused person's right to a fair trial by preventing potential jurors from hearing prejudicial information at bail hearings that may never be heard at trial. And those who defend bans often argue that the prohibition on publication is "temporary" and expires either at the end of the preliminary hearing, if the charges are tossed, or at the end of the trial.

One hard truth is significant. In the 1970s, even murder cases got to trial within six months or a year, lesser charges much more quickly. The ban on publication actually was temporary; the potential tainting of jurors a possibility, given the short time period between bail hearing and trial.

But cases now are years in the making, three, four and five years from arrest to trial not uncommon. And that ain't temporary. I doubt any of Sgt. Rutigliano's potential jurors would remember a thing that came out of a bail hearing three years earlier. But the cynicism bred by it about the justice system, now that will last.



Commentary by the Ottawa Mens Centre


"Thanks Chrisitie"

As usual , wonderfully honest news that tell us how it really is,

Keep it up.