Friday, November 22, 2013

Press Law in Canada: Ways in Which Muzzling the Press Does Harm

Susan raised the question of how restrictions on the press in Canada differ from those in the U.S. Wandering around I came across the following in which lies a nice summary (which I boldfaced) of why some news that some might find prejudicial to a pending case should be allowed to be published.

In 1994, the Supreme Court of Canada handed down a landmark ruling on publication bans and news media in the case of Dagenais versus Canadian Broadcasting Corporation. The ruling dealt with limitations on the scope of bans and it named factors that courts must consider before issuing bans that might infringe on freedom of the press. In a 6-3 ruling, the court ruled that the freedom of the press can be of equal or greater importance as the right to a fair trial.

The Dagenais case arose from a cross-Canada publication ban against the broadcast of a fictional drama, “The Boys of St. Vincent,” set in Newfoundland, which portrayed child sexual and physical abuse in a Roman Catholic orphanage. The ban was issued by a lower-court judge after hearing an application by lawyers for four members of a Catholic order in Ontario charged with the sexual and physical abuse of young boys in Catholic training schools. 

The judge reasoned that since the men would face trial soon in Ontario, the TV drama could jeopardize their fair trial rights. The judge ruled that the drama could not go to air until after the four trials, and he also agreed to ban any publicity about the application for the ban. The CBC appealed, but the appeal court agreed with the lower-court decision. However, the appeal court did limit the ban to Ontario and Montreal and it did away with the ban on publicizing the original ban.

The Supreme Court ruled that in “post-Charter Canadian society” the common law principle of protecting against a fair trial “does not provide sufficient protection for freedom of expression.” The court laid down a “modified rule” that a ban should be issued only when:

• Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and
• The salutary effects of the public ban outweigh the deleterious effects of the free expression of those affected by the ban.

The court said the issue is which constitutional right is more important at the time of application. The party, Crown or accused who wants a ban bear the burden of justifying this limitation on freedom of expression. Also, the judge issuing a ban must keep it as limited in scope as possible.

The court noted that judges need to consider seriously alternate measures to bans, such as changing trial venues, sequestering jurors, allowing challenges and voire dires during jury selection, and providing strong direction to juries. 

The supreme court listed reasons as to why publication bans are not healthy for the justice system as a whole, because not ordering a ban may:
• Prompt persons with relevant information to come forward
• Prevent perjury by placing witness under public scrutiny
• Prevent state or court wrongdoing by putting the justice system under scrutiny
• Promote public discussion of important issues.

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