One law, many views on keeping the public informed

Stafford trial publication ban reaffirms judges’ freedom, but jurists warn of a ‘huge disconnect’ in how they’re taught to apply decisions on press access

Kirk Makin

Justice Reporter — From Tuesday's Globe and Mail

May 25, 2010


Mr. Justice Dougald McDermid was determined to prevent media reports from polluting a high-profile trial last month when he slapped a near-total publication ban on the Victoria Stafford murder case.

In a different courtroom and on a much different case, one of his colleagues – Mr. Justice Fletcher Dawson of the Superior Court – was preparing to tell a jury that one of three men about to go on trial for terrorist activities had pleaded guilty. Judge Dawson allowed his words to be published in detail.

Two judges, two very different approaches. The public might be forgiven for feeling confused.

As with every publication ban, the cases featured judges acting with absolute independence, balancing key rights such as privacy, a fair trial and the public right to know. The vexing question is: Do judges have an adequate blueprint to go by in these cases, and do they adhere to it?

Interviews with a half dozen judges at all levels of court illustrate that there is no single answer to when a ban should be imposed. All that is certain is that judges view their control over the conduct of a case as sacrosanct.

The judges, each of whom spoke on condition of anonymity, said that they are taught little about the nuances of media rights issues, and that appellate courts are often out of touch with the realities of life in trial courts.

“There is a huge disconnect,” said one judge. “There is a startling difference between the lofty and high-sounding words of the Supreme Court of Canada, when they set out precise procedures for press bans, and what actually happens in the trenches.”

That disconnect is most visible in the contrast between a steady stream of appellate decisions espousing press rights and the reality of trial judges who rubber-stamp bans.

According to law, publication bans are virtually automatic in bail hearings and preliminary inquiries. Another category of bans is issued at the discretion of a trial judge. They may conceal a name, certain portions of evidence, or an entire proceeding.

Under a landmark 1994 decision known as Dagenais, the Supreme Court of Canada said that the media must be alerted and allowed to make legal arguments about a prospective ban. The party seeking the ban must show why it is necessary. The trial judge then balances press rights against the right to a fair trial or privacy.

The procedure has led to elongated trials, an Ontario judge remarked. He said that judges are directed to balance contending rights in so many areas of law that some of them simply tune out. “Why don’t they just tell us what they want us to do?” he said. “We’ll do it.”

The judge also noted that a 300-page guidebook issued to Ontario Superior Court judges - entitled Conduct of the Trial - fails to give any guidance on how to deal with publication bans.

While newsrooms are inundated with alerts about requests for bans – forcing managers to decide which ones their budgets allow them to challenge – nobody really knows how many bans are issued with no notice.

“I think it happens all the time,” said one judge. “It happens because judges tend to be unthinking about it. Neither side wants publicity, so they just rub each other’s back and the judge goes along with it. It happens invisibly. The results can be very, very different depending on which judge you end up with.”

Another judge said that some lower court judges do not keep up with developments in the law. “They are practical fact-finders,” he said. “Some of the principles are a little esoteric, and they just don’t register. They do not give the media notice because they don’t see it as being necessary.”

Since judges enjoy absolute discretion inside their courtroom, those variations are sure to continue. Even a chief judge cannot interfere. “On publication bans, there is a huge amount of discretion involved,” said one western judge. “We do not want our independence being interfered with.”

The nature of bans can also vary sharply on a regional basis. Small-town media attend court religiously, but are unlikely to challenge a judge aggressively about a proposed ban. In cities, however, judges often go months without seeing a journalist in their courtroom.

In one hopeful sign, publication bans have been added recently to the curriculum for classes given to newly appointed judges and at an annual continuing education program.

Dean Jobb, a journalism professor at Nova Scotia’s University of King’s College, said that judicial education is imperative, since the Dagenais decision remains “the only ruling the lower courts don’t take deadly seriously. If the courts feel they are taking it unfairly on the chin about this, I would like to see them get their house in order and make sure it is scrupulously followed.”

Prof. Jobb said that a united media front has resulted in important gains. “The courts are recognizing that the public has a right to a certain amount of information without the sky falling,” he said. “You see bans now that make sense and are well crafted.”

To be fair, some judges are jaundiced toward eruptions of media anger over temporary bans or those imposed with good reason to safeguard a fair trial. “The media tend to overreact to these cases,” she said. “They are always pushing the envelope.

“Still, I think judges have become more receptive to the idea that the media have a role,” the judge added. “They really do engage in the balancing exercise. Everybody also knows that with the Internet, this stuff is going to get out regardless of what you do.”

Several judges predicted that the Supreme Court will soon make a rarity of the near-automatic bans imposed at preliminary inquiries and bail hearings.

“Besides the fact that they are impossible to control, publication bans don’t serve a purpose any more,” one senior judge said. “When it comes right down to it, jurors put aside their tentative opinions and judge the evidence fairly on what they hear inside the courtroom. Where is the downside risk? All of the concerns about polluting a jury are dissipated at that point.”

As for Judge McDermid’s recent ban, most of the judges conceded to feeling embarrassed at the media uproar and that some explanation was necessary.

“I don’t think anybody likes that kind of publicity,” said one. “It is terrible. I think the press is playing a huge role by speaking out from their pulpit.”

Yet, just as a judge is the master of his own court, the moment a pronouncement reaches the court of public opinion and generates negative headlines, the playing field becomes distinctly uneven. Only one player cannot contribute to the debate – the judge who imposed the ban.