News blackouts unjustifiably prevented the public from learning why charges were dropped or suspended for some terror suspects, media lawyers told Canada's Supreme Court on Monday.
Several media organizations, including The Associated Press, are
asking the Supreme Court to lift reporting restrictions on
preliminary hearings in criminal cases.
The appeal relates to the 2006 arrests of the "Toronto 18" -
accused of planning to bomb the Toronto Stock Exchange and two
One man has been convicted and four more have pleaded guilty.
Seven have had the charges against them withdrawn or suspended, but the media are not allowed to report why. Six more are awaiting
Under Canada's criminal code, reporters may attend preliminary
hearings but are barred from reporting nearly all details if the
accused asks for a publication ban.
Media lawyers for the AP, the Canadian Broadcasting Corp., CTV
television and the Toronto Star argued that reporters in courtrooms
serve as surrogates for the public and have an obligation to report
about allegations against suspects. Lawyer Paul Schabas said the
public has the right to know why some suspects were released on
bail and later had their charges withdrawn.
"All of the bail and preliminary proceedings have been
effectively been under a cone of silence," Schabas told the nine
justices. "Why, the public may ask, are these men who the police
described in their press conference as being dangerous terrorists,
posing a real and serious threat to Canada, being released."
Schabas said the bans prevent scrutiny.
"The public's right to know is lost. Justice is not being seen
to be done," he said.
The court also heard from a different set of media lawyers about
an Alberta case that challenges the same section of Canada's law on
bail hearings. In that case, the public was shocked when an
Edmonton man accused of killing his pregnant wife was released on
bail. A publication ban prevented the public from knowing why he
was released. The man was later convicted of second-degree murder
and sentenced to life in prison.
Lawyers for some of the terror suspects and the government
argued that the existing system of automatic bans is necessary to
protect fair trial rights and ensure bail hearings take place
John North, a lawyer for the government, said in his written
submission to the court that the bans protect the fair trial rights
of the accused since jurors may be influenced by prejudicial
information disclosed at a bail hearing that was not admitted into
evidence at trial.
North said that is particularly important these days because the
internet preserves pretrial stories and search engines like Google
make it easy for any person to access this information at any time.
Schabas said juries can be trusted and that fair trial rights
are not so fragile.
Lawyers for the media in the terror case lost an appeal before
Ontario's Court of Appeal in a 3-2 majority decision announced in
January. In the majority lower court decision, Ontario Court of
Appeal Justice Kathryn Feldman wrote that an accused person can be
granted a publication ban in a preliminary hearing if there is any
possibility the case will go to a jury.
Feldman, writing for the majority, ruled that the limit on
freedom of expression is justified to prevent the potential breach
of fair trial rights. The two dissenting judges agreed with the
The Supreme Court reserved judgment for a later date.