Wednesday, June 16, 2010

Canada High Court 'Bails' on Free Press Ruling

Supreme Court of CanadaImage via Wikipedia
By an 8-1 margin, the Supreme Court of Canada last week upheld a statute barring journalists from reporting on evidence at bail hearings.

The majority opinion by Justice Marie Deschamps said the statutory publication ban was a "reasonable compromise" that protects the defendant's right to a fair trial without unduly compromising freedom of expression. The court noted that journalists are permitted to identify a defendant, list the charges against him or her, report the outcome of the bail proceeding, and attend the bail hearing. Additionally, the opinion stated, the publication ban expires either when the trial ends or when the defendant is released after a preliminary inquiry.

The case at issue concerned bail hearings of 18 defendants charged with engaging in terrorist activity.

According to Justice Deschamps: "[I]n the context of the bail process, the deleterious effects of the limits on the publication of information are outweighed by the need to ensure certainty and timeliness, to conserve resources, and to divert the disclosure of untested prejudicial information; in other words, to guarantee as much as possible trial fairness and fair access to bail."

In the U.S. legal system, judges grapple with the inherent conflict between the First Amendment right of freedom of the press and the defendant's Sixth Amendment guarantee of a fair trial. Case law has established a right of access to criminal proceedings, including preliminary hearings. Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980); Press Enterprise Co. v. Superior Court, 48 U.S. 1 (1986).

Enhanced by Zemanta


  1. Thank you for covering this.

    On June 11th. the "Toronto Star" published an editorial on this decision titled, "A loss for open courts." Its opening paragraph reads:

    "The Supreme Court has delivered a ruling on publication bans that will maintain a shroud of secrecy over bail hearings. It is a disappointing outcome that runs counter to recent court rulings trending in favour of the public’s right to know."

    ...and sums up powerfully with these two concluding paragraphs ...

    "The lone dissenter was Justice Rosie Abella, who argued that concerns over prejudicing a trial can be handled by partial bans imposed by a judge using discretion. A mandatory blanket ban goes too far and constitutes “a profound interference with the open court principle,” she wrote. “To maintain public trust in the justice system, the public must be able to see the judicial process at work.”

    "Abella got it right. Unfortunately, her fellow Supreme Court justices did not see it her way this time."

    Our Canadian justice system already lacks adequate transparency, in my opinion, and rulings such as this do diminish trust and respect. Journalists are our proxies.

  2. The U.S., unlike Canada, has the 6th Amendment, which the framers of the Constitution enacted as a response to England's "Star-Chamber" closed proceedings, reasoning that justice conducted in the light of day would be more fair. It is a delicate balance. Having been in the courtroom as both a lawyer and a journalist, I know that the tools available to a judge to preserve the defendant's presumption of innocence, such as a continuance, change of venue, voir dire, jury sequestration and the like, are not always effective in the information age in which we live.