Publication bans and the open court principle in Canada

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Friday, June 10, 2011

Jeremy Bentham, eighteenth century jurist and philosopher wrote: "Where there is no publicity there is no justice." He was speaking in reference to the open court principle, or the right of the public to have access to their judicial system. Today, the Canadian Department of Justice considers that principle indispensable in the administration of justice. Court proceedings are required to be “open to the public, and that publicity as to those proceedings be uninhibited.” As Bentham eloquently put it, publicity is indeed “the very soul of justice.”

With this in mind, Canadian media outlets have a very important task: to communicate the facts and actions taken in our judiciary system to the general public. This enables members of the public to form opinions not only about the court, but about issues which may significantly affect their lives and well-being. Public scrutiny of court proceedings is the first step in ensuring transparency and maintaining faith in the justice system. Without it, controversial actions go unnoticed and unchallenged, and public faith in the justice system is undermined. When restrictions, in the form of publication bans, are put in place, journalists are faced with limitations on their ability to do their job and bring information to the public.

Reasons for Publication Bans

On the other hand, publication bans can play an important role in ensuring fair trials and the safety of those involved. Publication bans can be used to protect the identities of witnesses and victims outside the courtroom and ensure that a potential jury hasn’t been exposed in advance to information that might prejudice an accused’s right to a fair trial.

If an accused party requests a publication ban at a bail hearing, the judge is required under the Criminal Code of Canada to apply one to the evidence and information produced at the hearing. Only after the accused’s full trial has finished can this information be made public and in many cases, this can be months or even years later. A mandatory ban obstructs public communication about bail court proceedings, but is often regarded as a necessary measure in providing a fair trial and timely bail.

Even though the law accommodates necessary exceptions to the open court principle, strict guidelines are in place as to whether or not they are a justified course of action. Requesting a publication ban to safeguard a reputation or to prevent the publicizing of inconvenient details are both considered by the court to be insufficient reasons.

Adverse Effects on the Open Court Principle

In the case of Toronto Star Newspapers Ltd. v. Canada, 2010 a number of media organizations challenged the mandatory aspect of publication bans on bail hearings. Although the court ruled that the limitation placed on freedom of expression is justified, Justice Abella, the only dissenting judge in the Supreme Court ruling, provided an important counter-argument. She argued that “public confidence in the justice system requires relevant information delivered in a timely way. A mandatory ban on the evidence heard and the reasons given in a bail application is a ban on the information when it is of most concern and interest to the public.” Justice Abella added that such a denial was “a profound interference with the open-court principle.” (For the full Supreme Court Decision: Toronto Star Newspapers Ltd. v. Canada 2010 SCC 21)

If an infringement on freedoms results from a court ruling it is because the advantages are thought to outweigh the disadvantages. But the use of publication bans has lasting effects outside the courtroom. If we continue to allow these 'brief infringements,' over time they will steadily erode public faith in the judicial system.

One final troubling aspect of mandatory publication bans is that because of their very nature – being mandatory – they discourage deliberation on whether a ban is justifiable.

Controversial Publication Bans: The Ashley Smith Inquest

A recent example of the controversial use of publication bans can be seen in the case of New Brunswick teenager Ashley Smith, who died in 2007 at the Grand Valley Institution in Kitchener, Ontario while in custody of the Canadian Correctional Services (CSC). Initially, the CSC called for a publication ban on more than a hundred exhibits related to the case until the jury reached a verdict. It sought to ban video footage of the incident, even though the correctional officers involved, and Ashley Smith’s family, wanted the footage released.

In 2010, the Court ruled in favour of the CBC which had appealed the limitations placed on its rights to access and copy the exhibits. The Court upheld the right of media to access exhibits used in court decisions and did not find there was a precedence to deny media from copying the exhibits. When an exhibit is introduced in court without restrictions it becomes part of the public record. Additionally, the Court indicated that there is nothing in law that permits a judge to impose his or her opinion about what does and does not need to be broadcasted to the general public.

After the Crown decided not to continue with criminal negligence charges against the correctional officers involved in the case, all documents were released to the coroner for an inquest. Since the inquest was originally expected to last six to nine months, Globe and Mail columnist Christie Blatchford wrote that a publication ban on these documents would “virtually guarantee irrelevance and effectively be permanent.” Even with Ashley Smith’s family and correctional officers fighting for the videos to be released, the CSC continues to firmly maintain its opposition.

The CSC even requested that the guards’ faces be blurred in the surveillance footage, citing a need for protection and personal safety – a request that had not been made originally by the correctional officers themselves. Despite the fact that of the 18 guards involved in the case, 14 are to appear as witnesses and have their identities and involvement published, it was ruled that government employees maintain some right to privacy. Opposing counsel for the Smith Family, media organizations, the Canadian Civil Liberties Association (CCLA) and the Canadian Association of Elizabeth Fry Societies (CAEFS) argued that there was no evidence that the personal reputations of the guards would be damaged if the footage was released, and that a publication ban was contradictory to freedom of expression and the open court principle. A compromise was reached between the two parties: the guard’s facial expressions would be obscured until a verdict had been reached – despite the subsequent limitation on the right to freedom of expression.

The case is ongoing and CJFE continues to share the concerns of the media about the broad use of publication bans in this case.

While publication bans have their place in Canada’s justice system, their purpose is to protect the rights of many not the private interests of a select few. Although the decision in the Ashley Smith case in favour of the CBC accessing and copying the documents demonstrates an awareness of the rights of the media, other court decisions indicate that the prevailing tendency is still to limit the openness of the courts.