Brian Ross

admin — Sun, 15 Apr 2012 23:15:08 +0000

No, There’s Not a Publication Ban on Acquittals and Withdrawals:

It just seems like they’re not interesting enough to report…

February 2012

This article is really just a brief one about publication bans but in writing it, I began to think about how the ‘media’ reports on crimes and the results of charges. Two years ago, one of my clients was charged with murder. You probably would have heard about it because it was in the newspapers, on the Internet, and on television. There was even a preliminary hearing that lasted over the course of several months. The media reported on it after that too (there was a publication ban on the evidence at the preliminary hearing). What happened after that? Well, the murder charge was recently withdrawn. You wouldn’t know it of course, because there was no mention of it in the media. Similarly, you might be familiar with these big “gang takedown” cases in the Greater Toronto Area, where the police sweep in and arrest dozens of people. In most cases, their names are published in the paper. I’ve represented several people caught up in these sweeping prosecutions. I’ve yet to see their names mentioned when their charges have been withdrawn.

In fairness, maybe I am supposed to call them to advise what happened. That’s not me. I don’t care. I mention it only because I see a disturbing trend in sensationalizing crime. But again, this articles isn’t really about media not reporting “good” results for defence lawyers, so I’ll stop.

The importance of the objectives of a publication ban sought cannot be overstated. The right to a fair tiral, the right to silence and the privilege against self-incrimination are central to our adversarial system of justice, enjoying a long history of sedulous protection by the Courts. A publication ban can ensure that there is a reduced likelihood that jurors will be influenced in their decision by improper information and thereby enhance the public’s faith in the criminal justice system.

Courts have authority under the common law to order publication bans as they have the inherent jurisdiction to control court proceedings to ensure a fair trial. Such orders may be made where it is necessary to prevent a serious risk to the proper administration of justice and where reasonably alternative measures will not prvent the risk. The formal test was outlined by the Supreme Court of Canada in the case of R. v. Dagenais and again, in R. v. Mentuck. The Court must consider the following factors in determining whether a ban should be imposed:

The judge must consider all other options besides the ban and must find that there is no reasonable and effective alternative available;
The just must consider all possible ways to limit the ban and must limit the ban as much as possible; and
The judge must weigh the importance of the objectives of the particular ban and its probable effects against the importance of the particular expression that will be limited to ensure that the positive and negative effects of the ban are proportionate.

The burden falls to the party who is seeking the publication ban. One can see that the Courts look to variables such as when the “right to a fair trial” is at issue. The right to a fair trial is so important that it is entrenched as a constitutional right, in both sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms. Indeed, in R. v. Genereux, the Court noted that in addition to the accused’s interest in the fairness of their trial, the public had an interest in their being acquitted or convicted through trials that were fair and that had the appearance of fairness.

Some argue that the Judge can simply tell the jury to ignore what they have read or heard. There is a long tradition in our justice system, a presumption that juries can always follow instruction. There is, however, a line of cases that note that in some instances, it might not be possible. Take, for example, the Paul Bernardocase. In that case, Justice Lesage noted that some pre-trial publicity is too prejudicial to overcome through judicial instructions as the dissemination of certain evidence to potential jurors “will make it difficult, if not impossible, for them to ultimately distinguish between evidence heard during trial proceedings and evidence obtained outside the courtroom”. In another case, R. v. Flahiff, the Court noted, “No accused should have to face his trial in an ongoing torrent of unfair publicity. No judge or jury should have to strain to banish unfair and unsupported publicity from their minds so that they can reach an impartial verdict based on the evidence. Fairness in a trial involves, in some measure, the impartiality and serenity of the atmosphere in which the trial is conducted.

In looking at “alternative measures”, Court have considered “sunset clauses” – bans that prohibit publication until after the trial has completed/verdict has been rendered. Courts have also implemented bans on the identity of witnesses or untried co-accused.

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admin — Fri, 30 Mar 2012 17:53:08 +0000

Hello world!

admin — Fri, 15 Apr 2011 05:52:23 +0000

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