Supreme Court muzzles media and public’s right to know

Ruling on reporting of bail hearings could undermine confidence in justice system

Fri Jun 11 2010


By endorsing a sweeping publication ban and shutting down informed debate over judges’ decisions to grant or deny bail to criminal suspects, our highest court has squandered an opportunity to enhance public confidence in the justice system.

The Supreme Court of Canada ruled Thursday that timely, efficient bail hearings and a news blackout on information that might damage a suspect’s right to a fair trial are more important than the principle of open, accountable courts. The public’s right to know — and the media’s right to inform — take second place.

At issue was a 34-year-old Criminal Code provision that gives suspects the right to ban publication of what’s said when a judge or justice of the peace decides whether a suspect should remain in custody until trial or can be freed on bail or other conditions. The ban imposes what one judge dubbed “a cone of silence” over the proceedings, making it a criminal offence to reveal the evidence or information presented, including the judge’s reasons for detaining or releasing the suspect.

While the latter provision may seem odd, it recognizes that the judge’s reasons alone could condemn a suspect in the eyes of the public. Bail can be denied if a suspect is likely to commit more crimes, intimidate witnesses or skip town if released. Not the kind of person you would invite home for dinner, let alone afford the benefit of the doubt.

The ban is not simply an irritant for journalists reporting on these hearings — it means the rest of us cannot be told why one murder suspect is released while another is locked up. Public outrage over the release of people accused of serious crimes is not tempered by the facts, which likely show they are not the violent, dangerous offenders they may appear to be. Critics attack the courts as soft on crime and judges take it on the chin, even if release is justified.

The issue came before the Supreme Court after media organizations, including the Toronto Star, joined forces to challenge the ban in Alberta and Ontario as an infringement on the Charter right to freedom of the press. The Alberta courts ultimately upheld the ban but the Ontario Court of Appeal, in a 2009 ruling arising from the prosecution of 17 Toronto-area residents on terrorism-related charges, ruled the ban is only justified if a suspect faces a jury trial.

That was a logical distinction to make. The ban is designed to ensure people who could wind up on a jury are not exposed to information and evidence that could prejudice them against a suspect long before trial. If there’s no jury, why keep the public in the dark?

Most serious offences carry the right to a jury trial, so bail hearings in many of the cases likely to attract media attention would have continued to be subject to the ban. In any event, the Supreme Court rejected this compromise in its 8-1 ruling.

Writing for the majority, Justice Marie Deschamps raised the spectre of suspects wasting time and money fighting for a publication ban when they should be fighting for their right to be freed on bail. Bail hearings, she pointed out, can expose harmful information — about the suspect’s character, associates and previous run-ins with the law — that may never be aired at trial.

And she reminded the media that bail hearings are held in open court and the outcome can be reported despite the ban. And the ban expires if charges are later dismissed or once a suspect is convicted or pleads guilty, but that process can take years to complete. While the information “may no longer be newsworthy” by that time, she conceded, “the ban cannot be said to impair freedom of expression more than is necessary.”

The media’s only champion was Justice Rosalie Abella, who felt a partial publication ban and other measures were sufficient to protect a suspect’s right to a fair trial. Her dissent cited the lack of hard evidence that pre-trial media coverage influences jurors or can affect the outcome of a case, an important point explored at length in the Ontario courts but given short shrift in the majority judgment.

The ban is “a profound interference” with the principle of open courts, she warned, and prevents the public from understanding “a key aspect of the criminal justice system.”

That’s a risk the rest of the court is willing to take. Justice Deschamps acknowledged the ban prevents the public from fully understanding why bail is granted or denied. “Although not a perfect outcome,” she wrote, “the mandatory ban represents a reasonable compromise.”

Tell that to the next judge who takes it on the chin for releasing a suspect on bail. If the media were free to report that the suspect has no criminal record and is not a threat to reoffend, on the other hand, the release is unlikely to spark criticism or outrage.

Justice Abella felt it necessary to remind her colleagues of the court’s “long pedigree in protecting the public’s right to be aware of what takes place in the country’s courtrooms.” One hopes this ruling — this setback for the principle of open justice — is an aberration.

Dean Jobb is author of Media Law for Canadian Journalists.