Lawyers say a battle over the media’s access to bail hearings is almost certainly headed to the Supreme Court after Ontario’s highest court failed to find consensus on the constitutionality of mandatory publication bans.
“This is the kind of issue of national importance that really should be vetted by the Supreme Court of Canada,” says Toronto lawyer Christopher Hicks. “The bench is kind of split between [the need for] a fair trial and an open and accessible court system. They go back and forth.”
The Court of Appeal’s 3-2 decision - which spans 257 paragraphs - came in a Charter challenge by several media companies over the management of a case involving 12 adults and five youths arrested in 2006 for terrorism-related offences. The case included allegations that the group was plotting to blow up Canada’s Parliament buildings.
The challenge targeted s. 517 of the Criminal Code, which forces judges and justices of the peace at bail hearings to impose a publication ban when requested by the accused. While the media companies argued against the provision, the federal Crown, Ontario attorney general, and several of accused argued it should be upheld.
Justice Marc Rosenberg and Justice Russell Juriansz ruled the mandatory publication ban violates s. 2(b) of the Charter. However, the majority decision of Justices Kathryn Feldman, John Laskin, and Janet Simmons backed the mandatory ban, but read down the legislation to apply only to bail hearings that “procedurally may possibly be tried by a jury.”
Said Feldman for the majority: “A publication ban is needed in jury cases to protect an accused’s right to a fair trial under s. 11(d) and s. 7 of the Charter, by preventing potential jurors from learning of prejudicial information from bail hearings which may never be heard at trial.
In my view, because it is also critically important that the rights of an accused under s. 11(e) and s. 7 of the Charter to reasonable bail following an expeditious bail hearing be protected in possible jury cases, the publication ban must be mandatory at the request of an accused and not merely available at the discretion of the justice following a hearing on that issue.”
But Rosenberg said the mandatory ban is too large a threat to freedom of expression.
“Section 517 cuts off meaningful and informed public debate about a fundamental aspect of the administration of criminal justice, the bail system, at the very time that the debate may be most important - when the decision is made to grant or deny bail.
It also hinders debate in other circumstances of great public interest, as where an accused on bail commits another, perhaps serious crime,” he wrote.
“The public is left to speculate about why the accused was released and the justice system is unable to provide a timely and meaningful response because of the statutorily imposed silence.”
Hicks represented a group of terrorism suspects in the case. While the Supreme Court has made clear there is no hierarchy of Charter rights, Hicks suggests the right to a fair trail might be viewed as a more crucial tenet.
“Fair trial, not [that it] trumps other Charter values like freedom of expression, but probably has a little more muscle because, as the Supreme Court of Canada has said, the fair trial interest effects so many of the players,” says Hicks. “It’s not just the accused, it’s the prosecution, it’s the judiciary, and it’s the community at large, really.”
The fact that the media is not forever barred from reporting on bail hearings - just until a trial has ended - must also be factored in, he says.
Hicks notes that whenever the appeal court offers a split decision on a point of law such as this, the losing party can take the case to the Supreme Court as a right.
“So I imagine they’ll go,” he says.
“It’s got legs. It’s an issue that’s subtle and sophisticated and nuanced. There should be an effort to resolve it.”
Blake Cassels & Graydon LLP lawyer Paul Schabas represented the appellants in the case, Toronto Star Newspapers Ltd., the Canadian Broadcasting Corp., The Associated Press, and CTV Television Inc. He says he is awaiting instructions on an appeal, but adds, “I would expect this is an issue that has to be dealt with by the Supreme Court.”
Says Schabas: “Even the majority recognizes that there’s a problem with s. 517 and that it’s overly broad in giving the accused a veto on the public’s right to know.”
Bail hearings are one of the most important stages in the criminal justice system, but they have been “cloaked in secrecy” since the early 1970s, when changes were introduced with the Bail Reform Act, says Schabas.
“The problem with the majority decision, as I see it, is by reading it down in the way that they’ve done, it doesn’t really address the problem that the majority has identified,” he says. “Which is, if it’s there to protect the tainting of jurors, even the majority recognizes that a tiny, tiny percentage of criminal cases end up before a jury.”
More specifically, as noted by Rosenberg, less than two per cent of criminal cases are tried by a jury.
“So having read it down to say, ‘Well, if there’s a possibility that it could go to a jury, then the accused can ask for a ban,’ still in my view doesn’t really address the problem of the section,” says Schabas.
“The public should be able to scrutinize what goes on at bail hearings,” he says. “That’s what the minority says - that there’s a strong public interest in transparency here, and the concerns that the Crown and some of the accused have raised doesn’t outweigh that, because those concerns are largely speculative, and overreach the extent to which the section has some valid objective.”