Publication bans are hurting the national conversation

Monday, February 26, 2018
3 reactions

publicationbans.png“There is also a very real concern about the effectiveness of any ban that I might impose. This trial will be conducted in a public courtroom. The court has no real means to police the broadcasting of information, whether innocently or deliberately, by those who attend the trial. Given the proliferation of twitter, facebook postings, blogs and the general posting of information on internet sites, a publication ban might well serve only to restrict responsible reporting by established media and do nothing to control the general dissemination of information." Justice Molloy, R. v. G.C., 2009 CanLII 89067

 

By Kevin Metcalf

When news broke that Don MacIntyre appeared in court on sexual interference charges against a minor, media in Alberta were quick to jump on the story. The story was reported prominently by provincial and national outlets alike. It took its place amid dozens of similar allegations that were brought forward against high-profile political figures as part of the burgeoning national discourse around the #MeToo movement. MacIntyre, a member of the United Conservative Party (UCP) and member of the Alberta Provincial Legislature resigned his position in cabinet the day after he appeared in court and resigned his seat a few days later. Yet almost immediately, a justice of the peace issued a publication ban on reporting around the case, forcing media outlets to remove online versions of the story.

There are meritorious arguments that can be made in support of publication bans in cases where the identities of young or otherwise vulnerable victims are involved. Publication bans are commonplace in Canadian criminal cases involving victims below the age of majority where the publication of a suspect’s full name may inadvertently identify the victim.

Reporters expressed outrage in this case, pointing out correctly that there was significant public interest in reporting charges against an elected official. Media outlets must weigh carefully the ethical implications of reporting crimes including sexual assault in a public context. The ethics of how or whether a story is reported falls squarely on individual media outlets and their editorial boards. Whether or not the basic facts of a story can be reported should only be at issue in the most demanding or delicate of situations.

After hearing a February 9, 2018 appeal form media organizations Court of Queens’ Bench Justice Glen Poelman called the original ban “an error in law”. Even the UCP supported the move to publish the story, and Jason Kenney recognized the public interest of reporting the story in a statement. MacIntyre’s lawyer also did not contest the lifting of the ban.

The same day the MacIntyre publication ban was lifted, CBC won a supreme court of Canada case, overturning an Alberta Court of Appeals injunction against a 2014 report the public broadcaster published online. The injunction was handed down after CBC refused to obey a publication ban which prohibited identifying the victim. Notably, the broadcaster did not contest the reason for the publication ban and agreed to stop identifying the victim in future coverage. After the court demanded that they retroactively remove content about the case they had already published on their website, CBC opted to resist the court order. CBC’s lawyers called the order to unpublish content ‘improper’.

"The fact that new technologies such as the internet and online publication may allow for a publisher to edit the content of online stories, should not justify criminal charges or a mandatory injunction to remove or "unpublish" a previously published story, particularly when such sanctions infringe a media outlet's freedom of expression rights, " an intervening coalition of media organizations argued in a court filing. A criminal contempt ruling stemming from CBC’s decision to resist the original court order will be heard in June 2018.

Bizarrely, the same week that both the MacIntyre and CBC publication bans failed their legal tests, Canada’s Conflict of Interest and Ethics Commissioner Mario Dion suggested in testimony to a House Committee that his office should have the ability to enforce confidentiality orders on parliamentarians and publication bans on media outlets to prevent them from reporting the details of his investigations. Salient points about parliamentary privilege notwithstanding, there is very little which more explicitly meets the definition of public interest reporting, than reportage on conflict of interest and ethics investigations involving federal employees.

Dion claimed in his comments that allegations are sometimes treated by the public as evidence of guilt and that his investigations might sometimes be exempt from public oversight. As CBC reports, Dion was previously called on to investigate Prime Minister Justin Trudeau, whose office appointed him. That investigation became the subject of a heated media and political controversy.

In cases where public figures have been accused of serious criminal activity or ethical violations, it is never in the national interest to suppress reporting. This is doubly true when attempts are made by courts to retroactively apply publication bans.  To their credit, Dion’s office reached out to CJFE following a CBC report on the issue, which quoted us heavily. They indicated that his comments were ‘off the cuff’ and not indicative of a new or sustained undertaking by the ethics watchdog. Here’s hoping this stays that way.

Publication bans are also used in cases with national security implications, though sometimes the reasons for the ban are unclear. Quebec Court Justice Jean-Louis Lemay granted a publication ban, requested by the defence, on all evidence in the murder trial of domestic extremist Alexandre Bisonette. Bisonette stands accused of carrying out the deadly January 29, 2017 Grand Mosque shooting in Quebec City and limitations on publishing evidence are demonstrably preventing a meaningful national conversation around that horrific and hateful incident.

Prohibiting information about justice proceedings from being published should be considered only in the most extreme or sensitive of cases. It is crucial for democracy that members of civil society resist any serious attempts to block public interest reporting from publication. It is equally important to challenge suggestions that the free expression and press freedom rights of organizations somehow differ based on when or where their reporting is published.  In comments regarding the case of R. V. G.C. Justice Molloy said that one the effects of publication bans is the removal of responsible journalists from courtrooms. This in turn allows for the spread of false or misleading opinion on social media, unchecked by any verified reports.

In the coming weeks and months CJFE will be conducting an in-depth analysis of publication ban cases in Canada. Our goal is to produce information and resources which seek to identify the scope of the problem (ie. how many publication bans exist) as well as to identify core issues such as irregularities in justification or frequency by jurisdiction. We’ll be looking at the justifications for existing bans which broadly fall under the categories of mandatory, discretionary or common law. Our position is that courts must prioritize free expression when assessing the positive effects of a publication ban against the public interest in a case. The goal of this research and resulting advocacy work will be to impress upon Canada’s Attorney General the need for strong national standards, data collection and transparency about the use of publication bans as well as the need to call on courts in all jurisdictions to weigh on the side of free expression and press freedom rights when considering use of ‘rubber stamp’ publication bans which we believe undermine the public’s right to know.




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  • Andrew Ackerman
    commented 2018-11-20 11:45:25 -0500
    When I was 13 I inherited the role of being the trustee of the Canadian Public Librarys from my father. This is why I then and now fully disagree with censorship. My father was the Lord Edward Windsor. Also known as King Edward VIII. If you look up his name you will find that every source you come across will state that he died in 1973. This is years before my own birth. So how is it that he would leave to me his son the role of trustee of the Canadian Public Library System? Well its because he knew something about censorship and the horrible damage it could do to the Canadian Public that he loved very much. I also inherited his royal titles. I was his Heir in right of Saskatchewan. Now you can see the gap between his Commonly known date of death and actual date of death are a difference of 17 years. My mother is the queen of England. Canada as well. And many other places. Something to note to yourself and tell everyone else you know is that the hall of records at the palace in England was burnt and all its information lost in the fire. Do you begin to see the pattern? I was named King in public by the Queen in front of Lawyers, elect, public, and children and my entire peer group. Being 13 I dealt with it as follows. I didn’t feel I was ready to be the king at age 13. I asked that it be made secret until I was older, more mature, more educated, had more life experience, and I wanted time to grow up and even cure cancer.
    Well I discovered that cancer had already had a very good medicine and the information had been suppressed and the medicine never perscribed. Censorship. I was never told the queen was my mother until I was 27. Censorship. Even though I was secretly already the king for 14 years nobody told me until she finally did at age 27. I was very hurt that nobody ever told me. I learned very hard that censorship is lying. And it is evil. It’s purpose is to manipulate the normal decision making ability you would possess if your information you based your decisions on was complete and true. This simple action of censorship makes you decision making ability completely impaired. If your driving descisions are impaired by anything, not just alcohol, it becomes a criminal act to operate or drive your vehicle. Impaired driving. So why on earth would any Canadian or any person anywhere think that making impaired decisions during any part of their lives would be ok?
    Without going on any further understand that the government and royal family members who were to honerably keep my secret are now using my secret as a weapon to manipulate every part of my life and they always have. They are using this censorship go manipulate my and your military into conflicts and actions that they should never take. They are manipulating themselves into my throne because I wish to not allow some very devious and unethical plans that they all have concerning everyone. Censorship is illegal in Canada. Hands down. I will do everything I can to stop it for your and my own good. My father died in 1991. They even tore down the church where his funeral was held. To manipulate historical facts. I as your king hope to hi heavens that these evil men do not succeed or surely this nation will find itself bamboozled out of all it is and has because they are not doing what they are doing for a good purpose. Because if it was for a good purpose they would not need to hide what they are doing and they would not have to destroy my existence to accomplish their end goal. Don’t let them censor your information. Becaus it leaves you impaired. None of the decisions Canadians make are being based on a reality founded in truth. You need to know more.
    When I was 13 I inherited the role of being the trustee of the Canadian Public Librarys from my father. This is why I then and now fully disagree with censorship. My father was the Lord Edward Windsor. Also known as King Edward VIII. If you look up his name you will find that every source you come across will state that he died in 1973. This is years before my own birth. So how is it that he would leave to me his son the role of trustee of the Canadian Public Library System? Well its because he knew something about censorship and the horrible damage it could do to the Canadian Public that he loved very much. I also inherited his royal titles. I was his Heir in right of Saskatchewan. Now you can see the gap between his Commonly known date of death and actual date of death are a difference of 17 years. My mother is the queen of England. Canada as well. And many other places. Something to note to yourself and tell everyone else you know is that the hall of records at the palace in England was burnt and all its information lost in the fire. Do you begin to see the pattern? I was named King in public by the Queen in front of Lawyers, elect, public, and children and my entire peer group. Being 13 I dealt with it as follows. I didn’t feel I was ready to be the king at age 13. I asked that it be made secret until I was older, more mature, more educated, had more life experience, and I wanted time to grow up and even cure cancer.
    Well I discovered that cancer had already had a very good medicine and the information had been suppressed and the medicine never perscribed. Censorship. I was never told the queen was my mother until I was 27. Censorship. Even though I was secretly already the king for 14 years nobody told me until she finally did at age 27. I was very hurt that nobody ever told me. I learned very hard that censorship is lying. And it is evil. It’s purpose is to manipulate the normal decision making ability you would possess if your information you based your decisions on was complete and true. This simple action of censorship makes you decision making ability completely impaired. If your driving descisions are impaired by anything, not just alcohol, it becomes a criminal act to operate or drive your vehicle. Impaired driving. So why on earth would any Canadian or any person anywhere think that making impaired decisions during any part of their lives would be ok?
    Without going on any further understand that the government and royal family members who were to honerably keep my secret are now using my secret as a weapon to manipulate every part of my life and they always have. They are using this censorship go manipulate my and your military into conflicts and actions that they should never take. They are manipulating themselves into my throne because I wish to not allow some very devious and unethical plans that they all have concerning everyone. Censorship is illegal in Canada. Hands down. I will do everything I can to stop it for your and my own good. My father died in 1991. They even tore down the church where his funeral was held. To manipulate historical facts. I as your king hope to hi heavens that these evil men do not succeed or surely this nation will find itself bamboozled out of all it is and has because they are not doing what they are doing for a good purpose. Because if it was for a good purpose they would not need to hide what they are doing and they would not have to destroy my existence to accomplish their end goal. Don’t let them censor your information. Becaus it leaves you impaired. None of the decisions Canadians make are being based on a reality founded in truth. You need to know more.
  • Dylan Smith
    commented 2018-05-21 06:50:28 -0400
    Thank you for sharing the post.
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  • Lars H. Friis
    commented 2018-02-26 17:03:52 -0500
    In my circle of friends there is fast growing discontent with the Canadian Court systems, especially with Family Law. As our Judges grow older there seems to have been a proliferation of idiotic and/or incompetent rulings, with no information supplied to the public about the ramifications to these same Judges. Access to justice is taking a second road to affordability OF justice, and the common man is further downtroddened by THAT. OUR Justice system isn’t getting better with age, as one might assume, it’s getting more bureaucratic,infinitely more expensive, and significantly less JUST.