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).
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