Social Justice: Reporting of legal matters a highly-valued activity

The criminal justice system can appear baffling to non-lawyers.
But it is likely bail hearings that create the most visceral reaction in the general public. People see a revolving door system of justice and don’t understand why suspects charged with serious crimes are released on bail, often within days of their arrest.The public understands the presumption of innocence, yet the perception of a revolving door system of justice persists. The media has something to do with this perception, but the problem is rooted in a lack of openness in the criminal justice system and in particular at bail hearings.

The Criminal Code provides for a mandatory publication ban at bail hearings when sought by the accused. The ban is discretionary when sought by the Crown. The result of this is a publication ban in almost every bail hearing that would be of interest to the public.

The publication ban not only covers evidence prejudicial to the accused, it covers all evidence, information given, and representations made. Worse, it covers the reasons for either granting or denying bail. The public cannot be informed why an accused has been released.

By not allowing this information to be released, we keep the public ignorant about this vital part of the justice system and create suspicion and distrust. The distrust leads to ill-informed opinions, which in turn can lead to the creation of negative compromises in the bail system.

Arguing that these proceedings are open to the public is specious. Very few members of the public attend any court proceedings, let alone short bail hearings. The media may represent the community but the media is only able to send reporters to the most high profile of cases.

This brings me to the January 2009, 3-2 Ontario Court of Appeal decision upholding the mandatory ban when sought by an accused while ruling that the mandatory ban should only apply to bail hearings for charges that might result in a jury trial. The dissent would have struck down the mandatory ban in its entirety.

There is no doubt that  a mandatory ban infringes section 2(b) of the Charter of Rights and Freedoms. The only potential justification for the ban must reside in the protection of an accused’s fair trial interests, that is the right to a fair trial in front of an impartial jury.

Even in charges that may result in a jury trial, how can we justify a mandatory publication ban of everything short of the decision many months, if not years before the ultimate trial? With the many demands made upon our attention spans, how can we justify a violation of a Charter right on speculation that potential jurors will retain some subconscious bias against an accused?

There are methods by which a court can rid itself of partial jurors and there is no right to an uninformed jury. Jurors can be impartial in spite of having been exposed to pre-trial publicity. I’d argue that it is the gossip percolating through a community that creates the most risk of harm to fair trial rights.

The majority of the appeal court argues that we cannot rely on jurors’ faded memories of any pre-trial publicity due to the Internet and the ability of a juror to “Google” an accused. Surely we cannot justify, even partially, a Charter breach on the Internet. And if technology can justify mandatory bail publication bans then we will have to rethink the sub judice contempt of court laws.

Currently these laws are flexibly applied to allow potentially prejudicial information to be published at the earlier stages of a criminal proceeding.

This is justified, in part, by the lengthy passage of time between the publication and the trial date. If technology can be used to justify a mandatory bail publication ban it can surely also justify a wholesale change in the application of contempt laws thereby further eroding the information that may be published prior to trial.

Let us not forget that reporting of legal matters is and should remain a highly-valued activity.
It increases public confidence in the law. It sheds light on the activities of police, prosecutors, and judges. Without this light we create ignorance and distrust.

Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College.  His e-mail address is [email protected].

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