June 10, 2010
Toronto Star v Canada
The Supreme Court of Canada has upheld the constitutionality of the automatic bail hearing publication ban available to an accused on request. When the ban is sought by the accused, the judge has no discretion to even permit publication of his own reasons for granting bail. If an accused doesn’t want the ban but a co-accused asks for one in the same proceeding, that ban applies automatically to all concerned. Yes, the majority acknowledged that there are effects on free expression, but on balance we are told the public has to live with that, until the accused is discharged or the trial is ended, even if that is years later.
Only one judge, Justice Abella, would have struck down the mandatory element of the ban, agreeing with Justice Rosenberg in dissent in the Ontario Court of Appeal.
Justice Deschamps, writing for the majority of the Supreme Court, began by noting that the Dagenais/Mentuck analysis is confined to discretionary orders for publication bans. She found that discretion is not a constitutional minimum threshold.
 … To consider mandatory bans unconstitutional because the circumstances in which they apply cannot be scrutinized in a Dagenais analysis would be to turn the rule on its head. In Dagenais, Lamer C.J. explicitly stated that his analysis did not concern bans required by statute (pp. 856-57).
She noted that mandatory bans can be justified, and have been in the past. She pointed to the Supreme Court’s MacIntyre decision which allowed a ban on release of the Information to Obtain a search warrant where nothing has been found on the search, and the Canadian Newspapers decision which upheld a mandatory ban on the identity of sexual assault complainants at their request. She then proceeded to analyse the mandatory ban in the bail hearing context on the basis of the court’s Oakes test.
She agreed with Justice Rosenberg in the Ontario Court of Appeal that the objectives of the legislation were:
 … (1) to safeguard the right to a fair trial; and (2) to ensure expeditious bail hearings.
These she found pressing and substantial.
In exploring the rational connection between the objectives and the ban, she pointed out that there are many mechanisms built into the Criminal Code for speedy access to bail. One of those is a compromise on the quality of evidence led at the bail hearing.
 … the prosecutor may lead any evidence that is “credible or trustworthy”, which might include evidence of a confession that has not been tested for voluntariness or consistency with the Charter, bad character, information obtained by wiretap, hearsay statements, ambiguous post-offence conduct, untested similar facts, prior convictions, untried charges, or personal information on living and social habits.
Similarly, at a preliminary inquiry, evidence which would not meet the threshold of trial evidence can be led, which is made more palatable by an accused’s right to a mandatory ban on evidence at a preliminary inquiry. This goes “beyond averting jury bias”, and addresses “the broader goal of protecting the right to a fair trial.”
 … It follows that the publication of proceedings at the preliminary hearing may result in a one-sided view of the case that could have an impact on trial fairness.
She found as a result that the rational connection could be found on the basis that:
…the ban prevents the dissemination of evidence which, for the sake of ensuring an expeditious hearing, is untested.
The next part of the Oakes analysis requires a finding that the ban minimally impairs freedom of expression, and she found it did.
 In light of the delay and the resources a publication ban hearing would entail, and of the prejudice that could result if untested evidence were made public, it would be difficult to imagine a measure capable of achieving Parliament’s objectives that would involve a more limited impairment of freedom of expression.
She then downplayed the effect of the ban on free expression.
 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.
 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.
 In summary, although information revealed at the bail hearing may no longer be newsworthy by the time the media can release it, the ban cannot be said to impair freedom of expression more than is necessary. The ban is limited to a preliminary stage of the criminal justice process and is not absolute, and the information the media are prevented from publishing is untested, and is often one-sided and largely irrelevant to the search for truth. The ban may make journalists’ work more difficult, but it does not prevent them from conveying and commenting on basic, relevant information.
One by one, she considered and dismissed alternative options for preserving fair trial rights and permitting more timely expression. Her concern was that the alternatives didn’t address the need for expeditious bail. Any publication ban hearing then or later would affect the way the evidence is led in the bail hearing. The fact that the ban can be counted on as a certainty until the trial ends has a psychological and strategic benefit to the accused. Given the early timing of any publication ban hearing, the accused wouldn’t be in a position to prove its necessity according to the Dagenais test, and the hearing at that stage would be difficult to conduct in a judicial manner.
In the judgment’s one bright spot, Justice Deschamps acknowledged the constitutionality of the discretionary ban at the request of the Crown:
 The fact that Parliament chose to make the ban discretionary where the prosecutor is the applicant does not undermine the legislation’s objectives. The prosecutor is in a better position than the accused to meet the Dagenais test. Unlike the accused, the prosecutor knows exactly what allegations are to be made against the accused and also knows what evidence will likely be introduced at trial. Moreover, the prosecutor does not face the problem of finding resources such as, most importantly, for counsel for both the publication ban and the bail hearings.
Having found the automatic ban minimally impairs freedom of expression, Justice Deschamps then considered the balance between the salutary effects of the ban and its deleterious effects.
What are the ban’s benefits?
 … it limits the deprivation of the liberty of the accused by confining the issues at the bail hearing to those specifically related to bail…
A day in the life of an accused person may have a lifelong impact. In addition to protecting this very important liberty interest, the ban means that accused persons can focus their energy and resources on their liberty interests rather than on their privacy interests. It ensures that they will not renounce their right to liberty in order to protect their reputations. It also ensures that the public will not be influenced by untested, one-sided and stigmatizing information bearing on issues that are often irrelevant to guilt. It ensures consistency with the objectives of other publication bans provided for in the Criminal Code, such as the one under s. 539 concerning evidence produced at a preliminary inquiry.
 … the information relevant to interim release often relates to the character of the individual accused and not to the crime … what kind of person he or she is, and whether he or she is likely to be a danger for society or to appear at trial. This aspect is important where several accused persons have conflicting interests. In such a case, one accused might choose at the bail hearing to denounce a coaccused as the “bad guy” and to adduce additional untested evidence for that purpose (see (2006), 211 C.C.C. (3d) 234, at para. 116, per Durno J.). In such circumstances, a mandatory ban limits the pre-trial disclosure of information that may be inadmissible at trial or highly unreliable.
… A large part of the evidence taken at the bail hearing is presumptively inadmissible at trial. Thus, criminal records, prior consistent statements and post-offence conduct, which may be mentioned at the bail hearing, might not be admitted in evidence at trial. While it is true that all information about the accused might arouse the public’s curiosity, such information is often irrelevant to the search for truth in relation to the offence, which is the actual purpose of the criminal trial.
 A discretionary ban would entail additional issues and adjournments, and would result in longer hearings.
The media’s counterargument was simply not accepted:
 The appellants argue that bail hearings would almost never be delayed if the ban were discretionary because the Dagenais test would rarely be met, since jury bias is purely speculative. As a result, counsel would seldom bring motions for bans. This proposition is based on the assumption that accused would renounce their interest in trial fairness to ensure an expeditious hearing. This is exactly the kind of compromise the mandatory ban is intended to avoid. The appellants’ argument is in fact based on the incorrect view that the ban has nothing to do with the rights of the accused to a fair trial and to fair access to bail. It is simply wrong to assume that neither the bail hearing itself nor the disclosure of information, evidence or the reasons for the justice’s order would have any effect on the accused’s interests.
Justice Deschamps devoted very little time to the deleterious effects on free expression, though she did acknowledge them:
 The ban prevents full public access to, and full scrutiny of, the criminal justice process. Moreover, the bail hearing may attract considerable media attention and its outcome may not be fully understood by the public, as was apparently the case when Mr. White in the Alberta case and certain of the accused in the Ontario case were initially released. In such cases, the media would be better equipped to explain the judicial process to the public if the information they could convey were not restricted.
In the end, she upheld the ban:
 Nonetheless, on balance, I must find that in the context of the bail process, the deleterious effects of the limits on the publication of information are outweighed by the need to ensure certainty and timeliness, to conserve resources, and to avert the disclosure of untested prejudicial information; in other words, to guarantee as much as possible trial fairness and fair access to bail. Although not a perfect outcome, the mandatory ban represents a reasonable compromise.
Justice Abella opened her dissent by reminding the majority of the Court’s historic protection of open courts:
 This Court has a long pedigree in protecting the public’s right to be aware of what takes place in the country’s courtrooms. It is based on the premise that to maintain public trust in the justice system, the public must be able to see the judicial process at work. The public’s ability to engage in meaningful discussion about what a judge decides, depends primarily on knowing why the particular decision is made.
She noted the practical contradiction of having open courts, and maintaining the publication ban:
 Section 517 of the Criminal Code automatically prevents disclosure of the judge’s reasons and of any information at a bail hearing whenever the accused requests a ban. Neither the public nor the press is prevented from actually being in court during the hearing, but what is mandatorily prohibited is the public dissemination of what is disclosed there until the trial is complete, a chronology that can take years to unfold. This has the effect, for all but the handful of people who are present in the courtroom, of denying access to information surrounding a key aspect of the criminal justice system — the decision whether or not to release an accused back into the community pending his or her trial. This denial is a profound interference with the open court principle.
 The seriousness of the infringement was compellingly summarized by Rosenberg J.A. as follows:
Section 517 cuts off meaningful and informed public debate about a fundamental aspect of the administration of criminal justice, the bail system, at the very time that the debate may be most important — when the decision is made to grant or deny bail. It also hinders debate in other circumstances of great public interest, as where an accused on bail commits another, perhaps serious crime. The public is left to speculate about why the accused was released and the justice system is unable to provide a timely and meaningful response because of the statutorily imposed silence. [para. 32]
And she noted the contradiction between the majority judgment and the court’s historical view:
 Concerns over pre-trial publicity were addressed by this Court when it considered the question of discretionary bans in Dagenais and Mentuck. The new threshold articulated in those cases was a high one, and bans were only to be imposed where they are “necessary” to protect against “real and substantial” risks to an accused’s fair trial rights (Dagenais, at p. 878), or “serious” risks to the administration of justice (Mentuck, at para. 32). Section 517, in granting an automatic ban at the request of an accused regardless of whether he or she can demonstrate such a degree of risk, completely collapses the constitutional framework in Dagenais/Mentuck, leaving out of the balance entirely the public’s presumptive right to know what goes on in a courtroom.
And there are remedies for the majority’s concerns:
 … such as a partial ban, challenges for cause, or a change of venue if there is a sufficient risk of prejudice. We should also be able to rely on the ability of a properly instructed jury to disregard irrelevant evidence, a reliance that is at the foundation of our belief in juries in criminal trials (Dagenais, at pp. 884-85; see also R. v. Corbett,  1 S.C.R. 670, at pp. 692-93; R. v. Vermette,  1 S.C.R. 985, at pp. 992-93). As Berger J.A. observed in the course of related proceedings in the Alberta appeal, where the accused had been released on bail after being charged with the murder of his pregnant wife:
The Applicant has been charged with second-degree murder. His preliminary hearing will not take place until the new year. If committed to stand trial, jury selection would begin months later. I very much doubt that prospective jurors would retain and recall the details of a 30 second news clip or a seven inch column summarizing submissions made by counsel, or reasons for decision pronounced by a bail judge. Even if some did, the usual admonitions to the array, challenges for cause, and jury instructions themselves, are, in my opinion, sufficient safeguards to ensure that an impartial jury, true to their oaths, will be empanelled.
(R. v. White, 2005 ABCA 435, 56 Alta. L.R. (4th) 255, at para. 17)
And, lest we forget, bans don’t work:
 In any event, s. 517 only protects an accused from disclosure of pre-trial information from a bail hearing. There is no legislative protection from potentially prejudicial pre-trial information that emanates from sources other than the bail hearing. In the absence of such a generalized ban, the benefit of a ban only on bail hearing information seems to me to be too porous to justify the seriousness of the infringement.
As for expeditious proceedings:
 … It is hard for me to see what evidence would routinely result in a protracted bail proceeding. A delay would also only result if one assumes that the media is entitled to notice in every case. I make no such assumption. While the decision to give notice is a matter of discretion for the judge hearing the bail application, it seems to me to be unrealistic to expect that submissions be invited from the media in every case where a publication ban in a bail hearing is requested.
 In the absence of such automatic notice, there will be, in the overwhelming number of cases, no undue delay. Those cases where the media is most likely to contest a ban are those few which have a higher profile. But I would not judge the desirability of a universal mandatory ban based on its effectiveness for a small percentage of cases.
 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.
In the end, she would have found that the ban was not proportional to the harmful impact on the open court principle, and would have granted the appeal.
There is no denying that the majority ruling is a serious blow to free expression about court proceedings. Simply put, there can no real debate about what occurs at a bail hearing if the accused wills it. The media submitted that open courts that are only open to those who can find the time to get to the courthouse are not open. Temporary bans that can last years are not temporary in practical terms.
The reality, though, is that the rapid and pervasive development of electronic social media will sooner or later render bans like this unenforceable, if they haven’t already. In the meantime, traditional media will be prevented from publishing the truth, while rumours flourish.
The only immediate solution lies in amendments to the Criminal Code.
For an earlier ruling in Toronto Star Newspapers v Canada: See the Ontario Court of Appeal judgment: Toronto Star Newspapers v Canada
For earlier rulings in R. v. White: See the Alberta Court of Appeal judgment: R v White See the Alberta Queens Bench judgment: