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Mandatory Publication Ban Upheld
Published in the June 2010 issue of Litigation Notes - View Article
The Supreme Court of Canada upholds the publication ban applicable to bail hearings, which is mandatory when requested by the accused.
The Supreme Court of Canada recently upheld the mandatory publication ban applicable to bail hearings as set out in Section 517 of the Criminal Code, which reads as follows:
“517 (1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, are given or to be given by the justice shall not be published in any documents, or broadcast or transmitted in any way before such time as
(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.”
The cases which came before the Supreme Court of Canada were the case of Michael White, who was charged with the murder of his wife in Alberta. A publication ban was placed on his bail hearing and the fact that he was released on bail provoked public outrage. The other case involved 17 people charged with terrorism related offences in Ontario. One of the accused applied for a publication ban while some of the others opposed it. The ban was ordered and the Court concluded that where a ban applied in respect of one co-accused it must equally apply in respect of all of them. In the latter case, the Ontario Court of Appeal ruled that Section 517 was too broad and it was read down to exclude from the ban any cases in which the charges would not be tried by a jury.The Supreme Court of Canada recently upheld the mandatory publication ban applicable to bail hearings as set out in Section 517 of the Criminal Code, which reads as follows:
“517 (1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, are given or to be given by the justice shall not be published in any documents, or broadcast or transmitted in any way before such time as
(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.”
The cases which came before the Supreme Court of Canada were the case of Michael White, who was charged with the murder of his wife in Alberta. A publication ban was placed on his bail hearing and the fact that he was released on bail provoked public outrage. The other case involved 17 people charged with terrorism related offences in Ontario. One of the accused applied for a publication ban while some of the others opposed it. The ban was ordered and the Court concluded that where a ban applied in respect of one co-accused it must equally apply in respect of all of them. In the latter case, the Ontario Court of Appeal ruled that Section 517 was too broad and it was read down to exclude from the ban any cases in which the charges would not be tried by a jury.
The Supreme Court of Canada reviewed the historical and legislative context of bail and of publication bans. Bail was originally developed in early English law not to further the liberty interest of the accused but because of the deplorable conditions in jails. In Canada, a study published in 1965 established a correlation between pre-trial detention, conviction and custodial sentences. This led to a Royal Commission in Ontario and a subsequent report known as the Ouimet Report. That report concluded that the impact of pre-trial incarceration could not be underestimated, as it could lead to social stigma and loss of employment and could make it impossible for accused persons to fulfill their family obligations, thereby weakening their family and social ties.
In Dagenais v. Canadian Broadcasting Corp., the Supreme Court of Canada concluded that the conflict between freedom of expression and the rights of an accused should not be resolved by giving one right priority over the other, but rather by engaging in a “balancing exercise that takes into account the salutary and deleterious effects of the measure and any alternatives”.
The validity of a statutory mandatory publication ban will now be determined by the test set out in the case of R. v. Oakes:
1. When a protected right is infringed, the government must justify its action by identifying a pressing and substantial objective.
2. The government must demonstrate that there is a rational connection between the objective and the infringement.
3. The government must show that the means chosen interferes as little as possible with the right.
4. The government must demonstrate that the benefits of the measure taken outweigh its deleterious effects.
On the question of “pressing and substantial objective”, the Supreme Court points out that the Ontario Court of Appeal had expressed the view that the purpose of the publication ban was to foster trial fairness. In light of the issues raised in the Ouimet Report about the deleterious effects of pre-trial custody, the Supreme Court of Canada expands the purpose of the publication ban to include not only the safe guarding of the right to a fair trial but also the ensuring of expeditious bail hearings.
On the subject of a “rational connection” between Parliament’s objectives and the means adopted to further those objectives, the Court reviews the various provisions of the Criminal Code which are designed to ensure that a bail hearing is held as expeditiously as possible. In order to avoid any delay prejudicial to an accused who ought to be released, compromises were made regarding the nature of the evidence to be adduced at a bail hearing. Consequently, there are virtually no prohibitions on the evidence that the prosecution can lead to demonstrate why the detention of the accused is justified. The prosecutor may lead any evidence that is “credible or trustworthy” which “…might include evidence of a confession that has not been tested for voluntariness or consistency with the Charter, bad character, information obtained by wire tap, hearsay statements, ambiguous post-offence conduct, untested similar facts, prior convictions, untried charges or personal information on living and social habits”. The Court therefore concludes that there is a rational connection in the interplay between the various components of the bail reform recommended in the Ouimet Report.
On the subject of “minimal impairment”, the Court points out that in assessing the impact of the ban, a court must consider the nature of the expression at issue. A bail hearing is conducted at the very beginning of a bail proceeding and often attracts considerable media attention, especially in highly visible cases. The Court goes on to point out that the fairness of a decision whether or not to grant bail depends to a large extent on its timeliness. If a justice were to hold a publication ban hearing “…the accused would have to prepare for that hearing in addition to preparing a rebuttal to the grounds the prosecution might raise to justify detaining him or her. The hurdles the accused would face in such a hearing are real…(and)…an additional burden would be placed on the accused at a time when he or she is extremely vulnerable.”
The Court goes on to say that “in light of the delay and the resources a publication ban hearing would entail, and of the prejudice that could result if untested evidence were made public, it would be difficult to imagine a measure capable of achieving Parliament’s objectives that would involve a more limited impairment of freedom of expression”. The Court goes on to point out that the Section 517 ban is not an absolute ban on access to the courts or on publication. It prohibits the publication of evidence adduced, information given, representations made and reasons given by the justice at a bail hearing but does not prevent the media from publishing the identity of the accused, the fact that he or she has been charged, the fact that an application for bail has been made or to report on the outcome of that application.
The Court went on to reject various proposals by the Appellants which might have limited the ban. The Appellants suggested that a risk to fair trial could be addressed by procedures that arise later in the process, such as challenges for cause, changes of venue and sequestration. The Court concludes that these are unsatisfactory as they do not address the need to ensure an expeditious bail hearing or the early release of the accused.
Another suggestion was that a time-limited publication ban could be imposed at the outset of the bail hearing that would last only until the end of the hearing, at which point a hearing would be held on the merits on continuing the ban. This was deemed unsatisfactory because parties need to know at the bail hearing if the information given there will be published. “Accused persons could alter their approaches to the bail hearing, or perhaps even forgo requesting bail, if they know that everything they say could be in the newspaper the next morning.”
The Court did not accept the solution of the Ontario Court of Appeal of making the ban mandatory only in the case of a jury trial. The impact of this would be limited since at the time of a bail hearing the accused has not usually made an election and has not ruled out the possibility of being tried by jury. Consequently, the ban would apply in the vast majority of cases.
The Court goes on to weigh the “deleterious versus the salutary effects” of the ban. The Court acknowledges that the deleterious effects of a publication ban should not be downplayed because it bars the media from informing the population on matters of interest which could otherwise be subject more widely to public debate. However, in view of the potentially overwhelming hardship on an accused of early custody, the importance of ensuring an expeditious bail hearing, the importance of preventing untested evidence from being made public outweighed the public’s interest in access to information about the bail hearing. The appeal was dismissed.
Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21
The Supreme Court of Canada reviewed the historical and legislative context of bail and of publication bans. Bail was originally developed in early English law not to further the liberty interest of the accused but because of the deplorable conditions in jails. In Canada, a study published in 1965 established a correlation between pre-trial detention, conviction and custodial sentences. This led to a Royal Commission in Ontario and a subsequent report known as the Ouimet Report. That report concluded that the impact of pre-trial incarceration could not be underestimated, as it could lead to social stigma and loss of employment and could make it impossible for accused persons to fulfill their family obligations, thereby weakening their family and social ties.
In Dagenais v. Canadian Broadcasting Corp., the Supreme Court of Canada concluded that the conflict between freedom of expression and the rights of an accused should not be resolved by giving one right priority over the other, but rather by engaging in a “balancing exercise that takes into account the salutary and deleterious effects of the measure and any alternatives”.
The validity of a statutory mandatory publication ban will now be determined by the test set out in the case of R. v. Oakes:
1. When a protected right is infringed, the government must justify its action by identifying a pressing and substantial objective.
2. The government must demonstrate that there is a rational connection between the objective and the infringement.
3. The government must show that the means chosen interferes as little as possible with the right.
4. The government must demonstrate that the benefits of the measure taken outweigh its deleterious effects.
On the question of “pressing and substantial objective”, the Supreme Court points out that the Ontario Court of Appeal had expressed the view that the purpose of the publication ban was to foster trial fairness. In light of the issues raised in the Ouimet Report about the deleterious effects of pre-trial custody, the Supreme Court of Canada expands the purpose of the publication ban to include not only the safe guarding of the right to a fair trial but also the ensuring of expeditious bail hearings.
On the subject of a “rational connection” between Parliament’s objectives and the means adopted to further those objectives, the Court reviews the various provisions of the Criminal Code which are designed to ensure that a bail hearing is held as expeditiously as possible. In order to avoid any delay prejudicial to an accused who ought to be released, compromises were made regarding the nature of the evidence to be adduced at a bail hearing. Consequently, there are virtually no prohibitions on the evidence that the prosecution can lead to demonstrate why the detention of the accused is justified. The prosecutor may lead any evidence that is “credible or trustworthy” which “…might include evidence of a confession that has not been tested for voluntariness or consistency with the Charter, bad character, information obtained by wire tap, hearsay statements, ambiguous post-offence conduct, untested similar facts, prior convictions, untried charges or personal information on living and social habits”. The Court therefore concludes that there is a rational connection in the interplay between the various components of the bail reform recommended in the Ouimet Report.
On the subject of “minimal impairment”, the Court points out that in assessing the impact of the ban, a court must consider the nature of the expression at issue. A bail hearing is conducted at the very beginning of a bail proceeding and often attracts considerable media attention, especially in highly visible cases. The Court goes on to point out that the fairness of a decision whether or not to grant bail depends to a large extent on its timeliness. If a justice were to hold a publication ban hearing “…the accused would have to prepare for that hearing in addition to preparing a rebuttal to the grounds the prosecution might raise to justify detaining him or her. The hurdles the accused would face in such a hearing are real…(and)…an additional burden would be placed on the accused at a time when he or she is extremely vulnerable.”
The Court goes on to say that “in light of the delay and the resources a publication ban hearing would entail, and of the prejudice that could result if untested evidence were made public, it would be difficult to imagine a measure capable of achieving Parliament’s objectives that would involve a more limited impairment of freedom of expression”. The Court goes on to point out that the Section 517 ban is not an absolute ban on access to the courts or on publication. It prohibits the publication of evidence adduced, information given, representations made and reasons given by the justice at a bail hearing but does not prevent the media from publishing the identity of the accused, the fact that he or she has been charged, the fact that an application for bail has been made or to report on the outcome of that application.
The Court went on to reject various proposals by the Appellants which might have limited the ban. The Appellants suggested that a risk to fair trial could be addressed by procedures that arise later in the process, such as challenges for cause, changes of venue and sequestration. The Court concludes that these are unsatisfactory as they do not address the need to ensure an expeditious bail hearing or the early release of the accused.
Another suggestion was that a time-limited publication ban could be imposed at the outset of the bail hearing that would last only until the end of the hearing, at which point a hearing would be held on the merits on continuing the ban. This was deemed unsatisfactory because parties need to know at the bail hearing if the information given there will be published. “Accused persons could alter their approaches to the bail hearing, or perhaps even forgo requesting bail, if they know that everything they say could be in the newspaper the next morning.”
The Court did not accept the solution of the Ontario Court of Appeal of making the ban mandatory only in the case of a jury trial. The impact of this would be limited since at the time of a bail hearing the accused has not usually made an election and has not ruled out the possibility of being tried by jury. Consequently, the ban would apply in the vast majority of cases.
The Court goes on to weigh the “deleterious versus the salutary effects” of the ban. The Court acknowledges that the deleterious effects of a publication ban should not be downplayed because it bars the media from informing the population on matters of interest which could otherwise be subject more widely to public debate. However, in view of the potentially overwhelming hardship on an accused of early custody, the importance of ensuring an expeditious bail hearing, the importance of preventing untested evidence from being made public outweighed the public’s interest in access to information about the bail hearing. The appeal was dismissed.
Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21