The Supreme Court of Canada came to the defence of the criminally accused today, upholding the constitutionality of blanket bans that prevent the publication of information at bail hearings for accused criminals.
In an 8-1 ruling, the majority said that the premature publication of details about police and Crown allegations would endanger the rights of individuals who are presumed innocent. They said it would also force their lawyers into conducting a public relations battle at a time when they need to apply themselves to more important tasks.
"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," Madam Justice Marie Deschamps wrote for the majority.
The decision was a major disappointment for media outlets, which argued that the bans are an unnecessary restriction on the free flow of information in the Internet age.
The decision affects thousands of criminal proceedings each year, since a bail hearing is generally the first occasion where evidence allegedly linking a defendant to a crime is revealed by the Crown.
Publication bans at bail hearings are mandatory if sought by the accused, and discretionary if sought by the Crown.
Dean Jobb, a journalism professor at the University of King's College in Halifax, said he was disappointed that bans will continue to be imposed in many cases that will never be heard by a jury.
"The intent of the law is to prevent people who might become jurors from hearing information and evidence that could prejudice them against a suspect long before trial," Prof. Jobb said. "If there's no jury, there's no longer a need to keep the public in the dark."
He said that the public will continue to be obliged to speculate, second-guess, and sometimes become outraged, about bail decisions. "So these rulings not only fail to make our courts more open to public scrutiny, they could undermine public confidence in the justice system," he said.
Thursday's decision came in the form of two publication ban cases that tested a freedom of expression guarantee in the Charter of Rights and Freedoms.
In one of the cases, Michael White - an Edmonton man charged with murdering his wife - applied for a publication ban at his bail hearing. The murder had been particularly high profile in the Edmonton area. There was a sustained public backlash after Mr. White was granted bail without any public dissemination of the judicial reasoning behind the decision.
The CBC challenged the constitutionality of the Criminal Code provision that authorizes the ban. CBC won at the lower court level, but the Ontario Court of Appeal allowed Mr. White's appeal.
In the other case, the Toronto Star challenged the same 1976 provision in relation to bail hearings for 17 adults and young people arrested in 2006 for terrorism-related offences in the Toronto area.
Judge Deschamps said that bans are not absolute, and permit the media to 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," she said. "The ban ends when the accused is discharged after a preliminary inquiry or at the end of the trial."
"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 majority said. "The ban may make journalists' work more difficult, but it does not prevent them from conveying and commenting on basic, relevant information.
The sole dissenting judge, Madam Justice Rosalie Abella, said that the public cannot be expected to wait years, in some cases, to hear why some accused were or were not deemed safe enough to be released on bail.
"Public confidence in the justice system requires relevant information delivered in a timely way," she said. "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.
There was an added wrinkle in the terrorism cases. Police had held press conferences to announce the arrests and details of the alleged plots had been disclosed and widely reported. In addition, some of the accused men wanted details of the allegations against them to be published.
An array of media organizations supported the challenges, arguing that automatic publication bans place an unwarranted cone of silence over proceedings that ought to be open to public scrutiny from the earliest possible stage.
They argued that the publication ban provision is based in deep, unjustifiable skepticism about whether jurors can distinguish between real evidence and pre-trial publicity. They also argued that the vast majority of criminal cases never end up before a jury, making the whole question of pre-trial publicity academic.
The media lawyers argued that concerns about pre-trial publicity could be met if judges were allowed to exercise discretion and decide on a case-by-case basis.
However, lawyers for the federal, Ontario and Alberta governments argued that publication bans are time-limited, and are essential to avoid pre-trial publicity that could taint an eventual trial.
The judges had to balance free expression and the realities of the Internet age with the possibility that unproven evidence against an accused will go unchallenged unless defendants defend themselves in public prior to their trials.