Today’s Court of Appeal decision in Toronto Star Newspapers Ltd. v. Canada, 2009 ONCA 59 has stuck down, in part, mandatory publication bans in bail hearings. The decision is lengthy and complex but the result is set out below:
[251] I propose the following revision to s. 517 in order to read down the mandatory ban:
517. (1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused where and for so long as the charge(s) may be tried by a jury, …
[252] The effect of the added phrase is to limit the mandatory publication ban at the request of the accused to bail proceedings in respect of charges that can possibly be tried by a court composed of a judge and jury. Consistent with the goal of effectively addressing the overbreadth problem while ensuring that an accused’s fair trial rights are preserved, the duration of the ban is limited, so that if through an election by the Crown or the defence the trial becomes a judge alone trial, either in the Ontario Court or the Superior Court, the ban no longer applies.
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