Canada’s Supreme Court upholds right of defendants to seek ban on reporting of proceedings

Supreme Court upholds right to publication bans

TORONTO — Several media organizations, including The Associated Press, lost an appeal at Canada’s Supreme Court seeking to overturn a law that gives defendants the right at bail hearings to have reporting about the evidence banned.

Reporters in Canada may attend bail hearings but cannot report on the evidence if the prosecution or the accused requests a publication ban. Judges are required to grant the requests.

In a 8-1 decision released Thursday, Justice Marie Deschamps, writing for the majority, said the mandatory publication ban is integral to a series of measures designed to foster trial fairness and ensure an expeditious bail hearing.

“We’re very disappointed,” said Dave Tomlin, associate general counsel for The AP. “The ban as it stands now is censorship. It’s a prior restraint on speech, and we don’t think such restraints should be imposed without a balancing by the judge in each case of the free speech and fair trial issues at stake.”

In her ruling, Deschamps said defendants should be protected.

“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,” Deschamps wrote.

Lawyers for The AP, the Canadian Broadcasting Corp., CTV television and the Toronto Star appealed the blackouts before the Supreme Court last November.

Paul Schabas, a media lawyer, argued that journalists are surrogates for the public in the courtroom and have an obligation to report on proceedings including bail hearings, where evidence usually is detailed for the first time.

Canada’s mandatory publication ban “gives the accused a veto on the public’s right to know,” said Ryder Gilliland, a lawyer for the media.

The appeal relates to the 2006 arrests of the “Toronto 18,” who were accused of planning to bomb the Toronto Stock Exchange and two government installations.

Schabas argued the public has the right to know why some suspects were released on bail and later had their charges withdrawn. A publication ban prevented the public from knowing why.

The court also heard from a different set of media lawyers about an Alberta case that challenges the same section of Canada’s law on bail hearings. In that case, the public was shocked when an Edmonton man accused of killing his pregnant wife was released on bail. A publication ban prevented the public from knowing why he was released. The man was later convicted of second-degree murder and sentenced to life in prison.

The high court also dismissed that appeal.