It is odd to find the Supreme Court of Canada worried that jurors may be prejudiced by information released at bail hearings. Its ruling yesterday - upholding publication bans on nearly everything that happens at bail hearings - seems a throwback. It is as if the court has lost the conviction that animated its 1994 ruling in Dagenais v. Canadian Broadcasting Corp, which put freedom of speech on the same plane as the right to a fair trial.
Bail hearings are not a trivial part of the criminal-justice system. Michael White of Edmonton was accused of first-degree murder in the death of his wife. Several Toronto-area residents were accused of terrorism. When Mr. White, for instance, was set free, the public had a right to know why. Those were the cases before the Supreme Court, but there are many other examples in which public confidence in the legal system is at stake. In Toronto, young men accused in gun crimes have been granted bail, only to commit crimes again before trial. The public is mystified.
Jurors are told to base their decisions only on what they hear inside the courtroom. In Mr. White's case, a judge couldn't fathom how a 30-second news clip or brief newspaper summary from a bail hearing could affect jurors months later. A belief in jurors' competence was at the heart of the ruling in Dagenais. That belief seems to have waned in yesterday's 8-1 ruling, written by Madam Justice Marie Deschamps, though it is not apparent why.
Publication bans on information given, arguments made and judges' reasons at bail hearings are mandatory, when requested by the accused. Parliament created the statutory ban in the early 1970s when it revamped bail laws to limit liberty as little as possible and to make sure people's lives weren't ruined by pre-trial custody. But that was before the Charter of Rights and Freedoms protected free speech (as well as the right to bail), leading to the revolutionary approach of Dagenais, one "that fully respects the importance of both sets of rights," as then-chief justice Antonio Lamer put it.
His court didn't think much of "temporary" publication bans; it understood the need for the public to know about what was happening when it is happening. But in the case of bail hearings, temporariness rears its head.
Only Madam Justice Rosalie Abella, in dissent, pointed out that the automatic publication ban "completely collapses the constitutional framework" from Dagenais, "leaving out of the balance entirely the public's presumptive right to know what goes on in a courtroom."
Compromises were proposed by media agencies, but the court found a reason each one wouldn't work. Still, there is no need to live with an anachronistic rule. Parliament should rewrite the law on bail hearings to reflect the importance of timely bail hearings and the open-court principle.
