Globe editorial

The Supreme Court sets back open courts

Its decision on a publication ban case reinforces the need for Parliament to rewrite the law on bail hearings, to reflect the importance of timely bail hearings and the open-court principle.

June 10, 2010

It is odd to find the Supreme Court of Canada worried that jurors may be prejudiced by information released at bail hearings. Its ruling yesterday – upholding publication bans on nearly everything that happens at bail hearings – seems a throwback. It is as if the court has lost the conviction that animated its 1994 ruling in Dagenais v. Canadian Broadcasting Corp, which put freedom of speech on the same plane as the right to a fair trial.

Bail hearings are not a trivial part of the criminal-justice system. Michael White of Edmonton was accused of first-degree murder in the death of his wife. Several Toronto-area residents were accused of terrorism. When Mr. White, for instance, was set free, the public had a right to know why. Those were the cases before the Supreme Court, but there are many other examples in which public confidence in the legal system is at stake. In Toronto, young men accused in gun crimes have been granted bail, only to commit crimes again before trial. The public is mystified.

Jurors are told to base their decisions only on what they hear inside the courtroom. In Mr. White's case, a judge couldn't fathom how a 30-second news clip or brief newspaper summary from a bail hearing could affect jurors months later. A belief in jurors' competence was at the heart of the ruling in Dagenais. That belief seems to have waned in yesterday's 8-1 ruling, written by Madam Justice Marie Deschamps, though it is not apparent why.

Publication bans on information given, arguments made and judges' reasons at bail hearings are mandatory, when requested by the accused. Parliament created the statutory ban in the early 1970s when it revamped bail laws to limit liberty as little as possible and to make sure people's lives weren't ruined by pre-trial custody. But that was before the Charter of Rights and Freedoms protected free speech (as well as the right to bail), leading to the revolutionary approach of Dagenais, one “that fully respects the importance of both sets of rights,” as then-chief justice Antonio Lamer put it.

His court didn't think much of “temporary” publication bans; it understood the need for the public to know about what was happening when it is happening. But in the case of bail hearings, temporariness rears its head.

Only Madam Justice Rosalie Abella, in dissent, pointed out that the automatic publication ban “completely collapses the constitutional framework” from Dagenais, “leaving out of the balance entirely the public's presumptive right to know what goes on in a courtroom.”

Compromises were proposed by media agencies, but the court found a reason each one wouldn't work. Still, there is no need to live with an anachronistic rule. Parliament should rewrite the law on bail hearings to reflect the importance of timely bail hearings and the open-court principle.





The "uttering threats" allegation is increasingly used by the establishment to intimidate anyone they don't like.

Take the case of Peter Roscoe in Ottawa, after having all his legal rights removed, incarcerated for simply wanting to be a father, the local social services decided that they don't like him and are attempting to have him arrested by the Ottawa Police.

The Ottawa Police have a vested interest, they don't like his claims that they made an illegal arrest. You see, a Ottawa Police officer decided to "smell gas", that way, he called the fire department to break down the door and allow the police to follow them in to arrest Roscoe.

Roscoe is not a criminal, he has been repeatedly arrested simply because he has tried to litigate his rights, rights that the Ottawa establishment has decided he does not have any right to.

The Ottawa Police ended his role as a parent about eight years ago, his wife came home drunk and he was arrested for throwing water in her face.

Since then, a series of Ottawa Judges have abused their powers to put Peter away in jail.

At the same time, Ottawa Hydro are threatening to terminate his electricity even though he is up to date in his payments, they want a security deposit that they know he can't pay, all in an attempt to put an end to Peter Roscoe's courageous efforts to assert his legal rights.

Peter's problems can be traced back to corrupt decisions made by the "underbelly of the Ottawa Judiciary. Denis Power, Alan Sheffield and Chucky Hackland just to name a few. Expect more of the same.