SCC Upholds Publication Ban Without Commenting on Publication and the Internet

Yesterday an 8-1 majority of the Supreme Court of Canada held that section 517 of the Criminal Code is valid notwithstanding it infringes section 2(b) of the Charter. The decision is indexed as Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21 (June 10, 2010).

Section 517 provides for a mandatory ban on the publication of “evidence taken, the information given or the representations made and the reasons, if any, given” at a bail hearing at the request of an accused person. In October, 2008, the Alberta Court of Appeal dismissed a Charter challenge to section 517 brought by various media organizations. Last January, a 3-2 majority of the Ontario Court of Appeal held that section 517 was unlawful insofar as it applied to charges that would not be heard by a jury. The Supreme Court of Canada heard appeals of both of these decisions together.

Deschamps J. wrote for the majority. She held that the (pressing and substantial) objective of section 517 was two part – to ensure a fair trial and to facilitate an expeditious bail hearing. In establishing this objective, Deschamps relied heavily on the 1969 “Ouimet Report” on criminal justice, which recommended expeditious bail hearings based on a relatively free exchange of information that would not necessarily be admissible at trial. The mandatory ban in section 517, she held, is rationally connected this objective, minimally impairing of the section 2(b) right and has an impact on the section 2(b) right that is proportionate to its objective. Opening any discretion for permitting publication, according to Deschamps J., would require an accused person to spend time and energy deciding whether to compromise on obtaining an immediate release from custody to avoid the risk of having information aired outside of the courtroom.

Abella J. dissented, adopting Rosenberg J.’s dissenting position in the Ontario Court of Appeal decision – that the salutary effects of the mandatory ban did not outweigh its deleterious effects because the causal connection between pre-trial publicity and jury contamination is weak and speculative.

The majority’s focus on fairness to the accused in the time period leading up to a bail hearing allowed it to get around some difficult questions about the impact of pre-trial publicity on trial fairness. The Ontario Court of Appeal had engaged on this issue, and in doing so, raised questions about the continuing validity of the concept of practical obscurity of information “in the era of mass communication and the internet.” Though significant, yesterday’s judgement contains no such dialogue on broad issues related to the law of information.

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