Canada high court upholds publication ban on evidence at bail hearings

[JURIST] The Supreme Court of Canada [official website] on Thursday upheld [judgment text] a defendant's right to a publication ban that applies to the evidence and information produced at a bail hearing. Canadian media organizations have claimed that the statutory ban, codified under § 517 of Canada's criminal code [text], is a direct violation of the freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms [text]. Under § 517 reporters may attend bail hearings but cannot report on the evidence if the prosecution or the defendant requests a publication ban. Judges are required to grant the requests because evidence presented at a bail hearing may not be admissible at trial, and, therefore, publication of the evidence could prejudice a party at trial. While the court conceded that the mandatory ban places a limit on freedom of expression, it held that when a protected right is infringed upon, the court must use a rational basis test to justify the government's action by identifying a pressing and substantial objective. The statutory ban was adopted as part of a sweeping reform of the rules on bail passed by Parliament with the primary objective of protecting the right of the accused to a fair trial and ensuring expeditious bail hearings. Justice Marie Deschamps, delivering the opinion of the court, held that the ban's limitation on freedom of speech was justified because it was necessary to "prevent prejudicing the accused at his trial by the dissemination of prejudicial matter which would not be relevant or admissible at his trial," in addition to fostering trial fairness. Deschamps went on to say that the "accused should be devoting their resources and energy to obtaining their release, not to deciding whether to compromise liberty in order to avoid having evidence aired outside the courtroom."

The Supreme Court's ruling stems two lower court cases in Ontario and Alberta in 2006. In Alberta, defendant Michael White was charged with the murder of his wife. White was released on bail and a publication ban was ordered by the court. The Alberta appeals court held that the ban "merely defers publication" and that the values of protecting fair access to bail and the right to a fair trial were benefits that outweighed the effects of the limitation on media organizations. In Ontario, 12 adults and five adolescents were charged with various terrorism-related offenses. Due the media attention the case attracted, some of the defendants applied for a publication ban. The appeals court held that while the ban was rationally connected to government's objective, it was too broad. The court remedied this issue by excluding from the ban any cases in which the charges would not be tried by a jury.

 

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