Mandatory publication bans of bail hearings constitutional

Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, just released, overturns the Ontario Court of Appeal and holds mandatory publication bans at bail hearings are constitutional.  A summary follows:

 

Under s. 517 of the Criminal Code, a justice of the peace is required, if an accused applies for one, to order a publication ban that applies to the evidence and information produced, to the representations made at a bail hearing and to any reasons given for the order.  In the context of two high profile cases — a murder case in Alberta and an Ontario case involving terrorism‑related offences — a number of media organizations challenged the constitutionality of the mandatory aspect of the publication bans, contending the provision is an unjustifiable violation of freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms.  In the Alberta case, the media's application was allowed, but the Court of Appeal set aside that decision and upheld the constitutional validity of s. 517.  The court concluded that the mandatory ban, while it infringes freedom of expression, merely defers publication and that the values of protecting fair access to bail and the right to a fair trial were benefits which outweighed the deleterious effects of the restrictions on freedom of expression.  In the Ontario case, the media's application was dismissed.  The Court of Appeal, in a majority decision, allowed the media's appeal in part, finding that s. 517 was overbroad and read the provision down to exclude from the ban any cases in which the charges would not be tried by a jury.  The dissenting judge would have declared the part of s. 517 relating to the mandatory ban to be invalid.

 

Held (Abella J. dissenting):  The appeals should be dismissed and the cross-appeal in the Ontario case should be allowed.  The constitutionality of s. 517 of the Criminal Code should be upheld.

 

Per McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Charron, Rothstein and Cromwell JJ.:  Whether a discretion exists to issue a publication ban is not determinative of the validity of a limit on freedom of expression.  The Dagenais/Mentuck test was not meant to apply to all limits on freedom of expression; rather, it was designed for and applies to discretionary orders.  The validity of a statutory mandatory ban, such as the one at issue, must be determined by conducting an analysis based on the Oakes test.  Bans are sometimes necessary, and whether they are justified depends on the context.  The s. 517 mandatory publication ban is but one of numerous interrelated measures adopted as part of a sweeping reform of the rules on bail resulting from the 1969 Report on criminal justice and corrections.  This Report recommended new rules to protect accused persons from the effects of pre‑trial incarceration and unsatisfactory conditions of detention, and to ensure that they were not punished at a time when they should be presumed innocent.

 

 While the statutory mandatory publication ban limits freedom of expression, that limit can be justified in a free and democratic society.  In adopting the various components of the bail reform and, more particularly, the mandatory ban, Parliament's objectives were to ensure expeditious bail hearings and to safeguard the right to a fair trial.  These objectives, which are undeniably pressing and substantial, were to be achieved by establishing a process that facilitated early release of an accused in order to mitigate the harshness of his or her interaction with the criminal justice system, limit the stigma as far as possible, and ensure that the trier of fact remains impartial.

 

When asking whether the mandatory publication ban is rationally connected to the objectives, the Court must consider other measures which might be linked to or even dependent on the ban.  In this case, the mechanisms in place are closely linked and a rational connection can clearly be found in the interplay between the various components of the bail reform  rules.  They illustrate the expeditious nature of the bail hearing and the ultimate objective of safeguarding the right to a fair trial.  The ban prevents dissemination of evidence which, for the sake of ensuring an expeditious hearing, is untested for relevance or admissibility.

 

The mandatory publication ban also meets the requirements of the minimal impairment stage of the Oakes test.  If a publication ban hearing were to be held instead, an additional burden would be placed on the accused at a time when he or she may be overwhelmed by the criminal process, and may not have been able to consult his or her counsel of choice.  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.  In light of the delay and the resources which a publication ban hearing would entail, and of the prejudice which 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.  Adding issues unrelated to the release of the accused to the bail hearing would require the consideration of matters extraneous to the bail process and could have a domino effect on other bail hearings in the same forum, thereby delaying the administration of justice.  Moreover, 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.  The media can publish the identity of the accused, comment on the facts and the offence with which the accused has been charged and for which the bail application has been made, and report on the outcome of the application.  Journalists are also not prevented from informing the public of the legal conditions attached to the accused's release.  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.  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 may make journalists' work more difficult, but it does not prevent them from conveying and commenting on basic, relevant information.

 

Finally, the mandatory ban has several salutary effects.  The ban limits the deprivation of the accused's liberty by confining the issues at the hearing to those specifically related to bail, thereby avoiding undue delay and permitting accused persons to focus their energy and resources on their liberty interests rather than on their privacy interests.  The ban 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.  The deleterious effects of the publication ban, however, should not be downplayed.  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.  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.  Nonetheless, on balance, 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.  While not a perfect situation, the mandatory ban represents a reasonable compromise.

 

Per Abella J. (dissenting):  The mandatory ban in s. 517 of the Criminal Code is not a justified infringement of freedom of expression because it does not meet the proportionality requirement between the measure's deleterious and salutary effects.  The appropriate remedy is to sever the mandatory aspect of s. 517 and leave in place the discretion to order a publication ban.

 

Preventing disclosure of a judge's reasons and of any information at a bail hearing until the trial is complete, a chronology which can take years to unfold, 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 harm of that interference is not outweighed by the benefits of a mandatory ban — the reduction in pre‑trial publicity and delay.  Each of these concerns can largely be attenuated, and neither is sufficiently significant to represent a serious infringement of fair trial rights.  Remedies such as a partial ban, challenges for cause, or a change of venue if there is a sufficient risk of prejudice can address speculative concerns over pre‑trial publicity, and the ability of a properly instructed jury in a criminal trial to disregard irrelevant evidence should also be taken into account.  Moreover, in the absence of automatic notice to the media, to which they are not entitled, there will be, in the overwhelming number of cases, no undue delay caused by a discretionary ban.  Those few cases where the media is most likely to contest a ban are those which have a higher profile.  However, the desirability of a universal mandatory ban should not be judged 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.  Given that the salutary effects of the ban under s. 517 are not proportional to the harmful effects flowing from the infringement of the open court principle, the mandatory aspect of s. 517 should be struck out.