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opinion

Dean Jobb is a professor in the school of journalism at the University of King’s College in Halifax and the author of Media Law for Canadian Journalists.

Early media reports on last week’s tragic shootings in Fredericton revealed how the suspect was wounded and arrested. Within hours, a judge slapped a publication ban on these details. Two days later, the same judge lifted the ban and the information was once again in the news.

This now-you-see-it, now-you-don’t legal battle over a document related to the deaths of four people – including two police officers – in the New Brunswick capital has no doubt sown confusion about the public’s right to monitor what happens in Canada’s justice system.

Were journalists acting properly when they reported on the Aug. 10 shootings? Were the authorities justified in seeking control over the news coverage? And why would a judge impose, then reverse, an order banning publication of information already transmitted to the world via the internet?

The answers suggest there’s a lingering – and outdated – belief that the authorities should dictate what the public has a right to know, despite constitutional guarantees of freedom of expression and freedom of the press.

Days after the incident, The Globe and Mail and other news organizations revealed how the police responded to the shootings and that the suspect, a 48-year-old Fredericton man, was shot and wounded in the abdomen after he aimed a rifle at a third officer from an apartment window.

Was this rumour-mongering? A leak from an anonymous source? No. The information came from an official account of the suspect’s wounding and arrest, filed at a local courthouse when the suspect, Matthew Vincent Raymond, was charged with four counts of first-degree murder. The document was accessible to any member of the public.

Why, then, were extraordinary steps taken to try to suppress this information?

Cameron Gunn, the executive director of New Brunswick’s Public Prosecution Services, sought an order from a judge of the province’s Court of Queen’s Bench banning further publication of the details of the arrest. The information, it turned out, had been filed with the courts in error.

Justice Judy Clendening responded with a sweeping, retroactive ban making it an offence to “publish, broadcast, re-broadcast, transmit, re-transmit, or disseminate in any media form” the information in the document for the duration of the criminal proceedings against Mr. Raymond. Reports already published online were to be “immediately removed” from news websites. It could have been months or years before the ban expired.

Media organizations scrambled to delete online reports, to comply with the ban, then joined forces to mount a legal challenge based on the Charter of Rights and Freedoms and a stack of legal precedents that ensure the courts are open to public scrutiny.

That’s why this skirmish over a few scraps of information matters, and why the attempt to “put the genie back in the bottle,” in the words of David Coles, the lawyer who acted for the media, was doomed to failure.

The Supreme Court of Canada has made it clear, time and again, that there must be compelling reasons – a serious threat to a suspect’s right to a fair trial, for instance – to block public access to the courts. We’re entitled to sit in the courtroom to watch what happens, and to read, watch and listen to news reports of these proceedings.

Prosecutors produced a sworn statement from the RCMP’s lead investigator on the case, who claimed further publication of the “sensitive” information could “contaminate” the investigation. Yet nothing in the document revealed how or why the shootings occurred.

After a two-day news blackout – and after finally hearing the media’s arguments against banning publication – Justice Clendening rescinded her order and lifted the ban.

The entire exercise was futile, in any event. Details of the arrest would remain embedded in search-engine caches and social media reposts long after the original reports vanished, temporarily, from news websites.

An attempt to stem the flow of accurate information is counter-productive at a time when claims of fake news make it ever-harder for the public to separate fact from fiction. The news media was forced to “unpublish” information already on the public record – an Orwellian exercise unworthy of our democratic system of government and our open, accountable courts.

“It’s often one or more media outlets that are left to take up the role of fighting these things, to keep the justice system open,” Mr. Coles noted after the ban was lifted.

Judges, however, should not have to be reminded of their duty to ensure court proceedings are subject to public scrutiny. And the public’s right to know should never be an afterthought.

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