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Follow-up to discussion on publication bans at bail hearings

Today’s detention of Byron Sonne by a Justice of the Peace at the 2201 Finch Ave. West courthouse has raised more questions about the extent of a publication ban under s. 517 of the Criminal Code.  This matter was first covered in my blog post of July 7, 2010.  A Quicklaw search revealed little in terms of reported cases on members of the media being prosecuted for violating the ban, although it is clear that there have been successful prosecutions.

What has been litigated is the constitutionality of the section.  Last month, the Supreme Court addressed the issue in Toronto Star Newspapers Ltd. v. Canada.  Justice Deschamps wrote for an eight-member majority with Justice Abella dissenting.  Osgoode’s blog on Supreme Court issues covered the case here.  Essentially, the court applied the Oakes test and held that the benefits of allowing such a ban outweigh any violations of one’s freedom of expression.

In her discussion on how such a ban impairs a constitutional right (the minimal impairment stage of the test), Justice Deschamps made some notable comments on the extent of the ban:

[38]                          It is worth noting that the mandatory publication ban provided for in s. 517 is not an absolute ban either on access to the courts or on publication. The provision only prohibits the publication of evidence adduced, information given, representations made, and reasons given by the justice at a bail hearing.  But the media can publish the identity of the accused, comment on the facts and the offence that the accused has been charged with, and that an application for bail has been made, as well as report on the outcome of the application. Journalists are also not prevented from informing the public of the legal conditions attached to the release of the accused.

[39]                          The temporary nature of the ban is another important factor.  The ban ends when the accused is discharged after a preliminary inquiry, or at the end of the trial. In essence, it applies only with respect to the bail process, and the information it covers can eventually be made public once more complete information produced in accordance with the standards applicable to criminal trials is available.

Ultimately, Justice Deschamps held:

[64]                          For these reasons, I would conclude that s. 517 Cr.C. infringes freedom of expression but that the limit can be demonstrably justified in a free and democratic society.

In dissent, Justice Abella disagreed, stating:

[76]                          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.  Restrictions on the release of such information are only justified if their benefits outweigh their detrimental impact. 

[77]                          Given that the salutary effects of the ban under s. 517 are not proportional to the harmful effects flowing from the infringement of the open court principle, I would allow the appeal in both  the Ontario and  Alberta cases and strike out the words in s. 517 that render the ban mandatory.

From a constitutional perspective I certainly see the concerns of the media as well as understand Justice Abella’s interpretation of the law.  That said, the publication ban ultimately protects our clients from media scrutiny which is generally in their interest.

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