INDEPTH: PUBLICATION BANS
Publication bans: What the media can't say
By John Bowman and Justin Thompson, CBC News Online | Updated November 7, 2003
Under the law, judges must grant a publication ban on evidence presented at bail hearings and preliminary inquiries if the accused asks for one. During the trial, anything that is said or presented in court while the jury is away cannot be reported. Only after the trial can the press reveal "what the jury didn't see."
In the Paul Bernardo trial, the judge imposed a partial publication ban and prohibited journalists and the public from viewing videotapes presented in court. These bans are often imposed in the name of public decency and out of respect for the families of the victims.
News organizations will sometimes fight the publication bans, as they did in the Bernardo case, claiming that they violate freedom of expression guaranteed under the Constitution.
During a trial, anything that is said or presented in court while the jury is away cannot be reported. Only after the trial can the press reveal "what the jury didn't see."
By law, judges must grant a publication ban on evidence presented at bail hearings and preliminary inquiries if requested to do so.
In general, publication bans exist to:
1. Ensure a fair trial for a person accused of a crime.
2. Ensure transparency of proceedings so Canadians know that crimes are prosecuted, and punished if proven.
3. Ensure privacy of people who may be affected by the information divulged in court.
But not all publication bans are imposed to protect citizens. In two separate murder cases, in Manitoba and B.C., judges have prohibited publication of the details of police stings. The judges in those cases ruled that future police operations could be jeopardized if the details of how they work are made public.
The Winnipeg Free Press, Brandon Sun and Vancouver Sun challenged the publication bans and the case is now before the Supreme Court of Canada.
A controversial publication ban in Britain was imposed for another reason: to protect the killers of two-year-old James Bulger from vigilante justice. Robert Thompson and Jon Venables, who were 10 years old when they beat the toddler to death in 1993, were given new identities when they were released in June 2002.
The judge imposed a permanent publication ban on any details about their new identities or where they will be relocated. He said that the press's continued interest in the case left the two vulnerable to harassment and violence.
In July, the publication ban was eased slightly to protect Internet service providers from prosecution if information violating the ban appears on one of their customers’ Web sites.
In Ontario, the names of an Aylmer couple whose children were removed by the Children's Aid Society have not appeared in the press. Neither have the names of a couple from Oshawa, Ont., who were accused of confining their two teenage sons in makeshift cages. Publication bans in both cases have prevented writers and broadcasters from revealing their identities.
In serious criminal cases, a preliminary hearing is held to ensure that sufficient evidence exists to justify a full trial. All preliminary inquiries are held before provincial courts.
Among other things, the preliminary hearing is a chance for the Crown prosecutor to present witnesses whose testimony may persuade the judge there is enough evidence to go to trial.
The preliminary hearing is not meant to establish guilt or innocence. It is an opportunity for the judge to evaluate the case before choosing to proceed with or drop the charges. The judge may also decide to upgrade or downgrade the charges.
If, after attending the preliminary hearing, the accused decides the Crown has enough evidence, he or she may elect to enter a guilty plea, thus eliminating the need for a full trial.
Publication bans are often imposed when children are involved, to protect them from harmful publicity. In Ontario, it is illegal to reveal the names of children involved in hearings regarding their custody. In fact, publishing any information that would identify them, including their parents' names, their ages or sometimes even the school they attend, is banned.
Federal laws, including the Young Offenders Act, prohibit identifying in the press anyone under the age of 18 who is involved in a criminal proceeding. This includes the accused, witnesses and victims, unless the victims have died.
The Internet is becoming a challenge for those trying to enforce publication bans. Paul Bryan of Burnaby, B.C., was charged for posting results of last November's federal election on his Web site.
Under the Canada Elections Act, it is illegal to publish election results from parts of the country where polls have closed in parts of the country where polls are still open. The law is in place so that results from the East will not influence voters from the West.
But Bryan believes that the law infringes on his freedom of expression and, with the advent of the Internet and satellite television, is unenforceable besides. He is challenging the law under the Charter of Rights and Freedoms.