Legal Affairs

Fighting publication bans
By Dean Jobb

Media outlets have the right — if not always the means — to argue against the keeping names and details of court cases secret

The shocking story of a terrorist plot to blow up a busy street in downtown Montreal made national headlines last November, after media organizations went to court to gain access to the records of a Vancouver immigration proceeding. According to the FBI documents they unearthed, Samir Ait Mohamed — an associate of Ahmed Ressam, the man convicted in the millennium plot to bomb the Los Angeles airport — is alleged to be part of an Algerian cell with ties to Osama bin Laden's terrorist network.

Alberta was the only province to … devise rules to inform the media that a ban is being sought. A Court of Queen's Bench practice note requires applications for publication bans to be filed at least 21 days before trial, unless a judge waives the requirement.

After the events of Sept. 11, allegations against a suspected terrorist are an obvious target for journalists eager to lift the veil of secrecy sometimes thrown over court cases or other official proceedings. Yet on any given day, as cases come and go before Canada's criminal courts, a judge may be asked to impose a news blackout on a name, the contents of documents, or testimony that may threaten someone's privacy or business interests. And often the ban is imposed without notice to the media and without an airing of the constitutional right to free expression.

This state of affairs is puzzling and, for journalists, frustrating. In 1994 the Supreme Court of Canada, in Dagenais v. Canadian Broadcasting Corporation (3 S.C.R. 835), said that the media should be afforded a chance to oppose publication bans not mandated by law. Seven years later, media counsel have launched a nationwide campaign to convince judges and lawyers that this right can be exercised without unduly disrupting trials or burdening litigants with the expense of notifying dozens of media outlets. And it appears the long-overdue solution is only a few mouse clicks away, on the Internet.

The media's right to intervene was established through a legal tug-of-war between fact and fiction. In 1992 the CBC planned to televise The Boys of St. Vincent, a gritty drama based on the abuse of children at the Mount Cashel orphanage in St. John's. Lucien Dagenais, a member of the Christian Brothers — the same order that ran the Newfoundland institution — was standing trial before an Ontario jury on similar charges. Lawyers for Dagenais and three co-accused obtained a sweeping injunction that blocked the broadcast and even prevented the media from reporting that a ban had been imposed.

Two years later, the Supreme Court overturned the order as overly broad and revamped the traditional common-law approach to publication bans, which gave greater weight to the fair trial rights of accused persons when concerns were raised about publicity and media access to the courts. Writing for the majority in Dagenais, then-chief justice Antonio Lamer held there is no hierarchy of rights enshrined in The Charter of Rights and Freedoms; the media's guarantee of freedom of expression under Section 2(b) carries the same weight as Section 11(d)'s right to a fair trial for those accused of crimes.

Dagenais sets out a procedure for assessing whether bans should be imposed in circumstances where the judge has a discretion, under the common law or the Criminal Code and other statutes, to prevent or allow publication. (It does not apply to mandatory bans, such as the restriction on identifying young offenders or revealing testimony at preliminary hearings, most of which have already withstood Charter scrutiny.) The party seeking the ban bears the burden of establishing that the infringement on free expression is justified. Judges must be satisfied a ban is necessary to prevent "a real and substantial risk" to the fairness of the trial, and that "reasonably available" alternative measures — such as sequestering jurors and changing venue — will not alleviate the risk. Any ban imposed must be as limited in scope as possible and, furthermore, the benefits of banning publication must outweigh the detrimental effects of curtailing free expression.

"[The Nova Scotia] regime is a one-stop shopping, no-cost or low-cost, five-minute system … it can be picked up by any jurisdiction for almost no cost."

Getting the media into the courtroom to exercise this new right was a trickier business. Lamer directed that judges "should give the media standing (if sought)" and may direct that third parties affected by the proposed ban — invariably, the media — be given notice. How much notice? In what form? Who are the media? It was up to individual courts and provinces to resolve those questions, the chief justice said. "Exactly who is to be given notice and how notice is to be given should remain in the discretion of the judge to be exercised in accordance with the provincial rules of criminal procedure and the relevant case law."

Journalists hailed Dagenais as a landmark. Armed with the ruling, media lawyers have defeated or watered down numerous restrictions that were once routinely imposed. When the federal government amended Section 486 of the Criminal Code two years ago to enable all crime victims and witnesses to seek bans on their identities, it included provisions that require judges to notify the media and balance Charter rights, in keeping with Dagenais.

Lawyers and courts, however, have been slow to recognize and appreciate the media's right to intervene. "It's a question of breaking the psychology that publication bans are routine and can be dealt with in the absence of the media," notes Daniel Henry, the CBC's senior counsel and president of Advocates in Defence of Expression in the Media (Ad IDEM), a national association of media lawyers. Media outlets continue to learn of bids to restrict publication only when a motion is put to the court. Then it's up to a brave journalist to interrupt the proceedings, cite Dagenais, and request an adjournment so a lawyer can be summoned. While judges have been accommodating, the timing could not be worse, leaving jurors and witnesses to cool their heels while a hearing is hastily arranged and conducted.

And when no reporter is present to intervene, bans have been imposed without media input and with no formal advisory of their terms. "The result was everyone was unhappy," observes Jonathan Kroft, a Winnipeg lawyer who acts for the Free Press and Brandon Sun. "The courts were unhappy when they felt they made orders that weren't being followed, the journalists were unhappy that they were being chilled because there was some suspicion there was an order but they weren't really sure what it was."

Even though Dagenais does not make it mandatory to give notice of ban motions, it's obvious the media's right to intervene is meaningless without such a mechanism. Alberta was the only province to take up Lamer's challenge and devise rules to inform the media that a ban is being sought. A Court of Queen's Bench practice note requires applications for publication bans to be filed at least 21 days before trial, unless a judge waives the requirement. Applicants must notify the media by posting written notice of the application at the courthouse no later than 14 days before the motion is heard.

The initiative looks good on paper. In practice, says Edmonton media lawyer Barry Zalmanowitz, notice still tends to be an ad hoc affair. Judges advise counsel who fail to comply with the deadlines "to try and give some kind of notice. Nobody has been refused a publication ban or has been rebuked by the court for not complying with the practice note," notes Zalmanowitz, who represents Alberta's Sun newspapers. "A practice note is a start, but practice notes don't have the force or law — they're informal statements of the procedures that should be followed."

Last spring Ad IDEM came forward with proposals to sort out the notice mess. A committee, headed by Kroft, has called on court officials across the country to establish a central registry — a sort of publication ban clearinghouse. Media outlets interested in being notified of ban requests would register with the court, and counsel seeking a ban would be directed to contact those on the list. Ad IDEM envisions notice being provided via e-mail or fax, within the time frames set out in each jurisdiction's rules of court. The registry would also record the exact terms of any ban ultimately imposed.

"Dagenais said the media had an interest and was entitled to notice. It didn't say how, in fact it specifically left it to the local rules of procedure," Kroft notes. "Then the question is, how do we do that? Do you just go to the phone book and look under 'M'? Doesn't work." The proposed registry would free counsel and judges from cherry-picking who gets notice, an exercise that risks leaving out an interested media outlet or individual journalist. "It's a self-identification process."

The Ad IDEM initiative has been upstaged by the Nova Scotia courts, which instituted an Internet-based system in March to notify the media of publication ban requests. The province's media-liaison committee, a forum for judges and media representatives to discuss access issues, oversaw the creation of a web page that enables counsel to notify media subscribers, via e-mail, at the touch of a button. The web site is maintained by the School of Journalism at the University of King's College in Halifax, at no cost to the courts, applicants, or the media. It is being promoted for cases heard in the busy Halifax-area courts, with plans to extend coverage to the entire province.

"This regime is a one-stop shopping, no-cost or low-cost, five-minute system … it can be picked up by any jurisdiction for almost no cost," says Halifax media lawyer Jim Rossiter, who helped devise the system. The alternative is serving conventional notice, on paper, at a cost of at least $70 per media outlet — a prospect with little appeal in times of rising legal costs and shrinking legal-aid budgets. As well, the system is readily accessible to unrepresented litigants. Media outlets in Prince Edward Island, Rossiter says, are considering asking their courts to adopt the procedure.

Nova Scotia's system has already produced a favourable ruling for the media. In mid-April, Associate Chief Judge Brian Gibson of the provincial court ruled against banning publication of the names of two young complainants and their mother's boyfriend, who had pleaded guilty to assaulting them with a hot steam iron. "Those who make complaints of possible criminal conduct ought to know and expect that the investigation of such complaints which lead to criminal charges, will be subject to public scrutiny. Public scrutiny provides a balance," he ruled (see R. v. Rhyno, April 11, 2001). Lawyers for Halifax's two daily newspapers responded to the e-mailed notice and argued against the ban.

Education has been a by-product of the Ad IDEM and Nova Scotia initiatives. Media lawyers say an alarming number of counsel and judges remain oblivious to the rights established in Dagenais. "And I would say that those criminal defence lawyers and Crowns who were aware of the obligation to give notice were usually in no hurry to remind anybody else," adds Rossiter. Still, he says, feedback has been positive. Nova Scotia's Public Prosecution Service, for instance, has incorporated information about the e-mail system into its training materials. "It seems to streamline the process," admits Jennifer MacLellan, a Crown attorney in the service's Dartmouth office. "Any time you have something like this in place, it makes it easier for everyone involved."

Nova Scotia's system has had another, unexpected benefit for the media — it has forced counsel to take a hard look at the Dagenais principles. Informally, lawyers tell Rossiter that they are dissuading clients from seeking bans, citing the cost and the limited chances of success in most cases. "Where before counsel would have said, `What the hell, I'll put up my hand and ask for a ban,' now they're being forced in advance to think through their reasons," Rossiter says. Witnesses concerned about seeing their names in the paper, MacLellan says, realize that notice is tantamount to an open invitation to reporters to attend. "If you take your chances, there may not be any media in court that day. But if we use (the notice system), they're going to be in court that day."

Rossiter knows of at least two occasions since last March when counsel sought a ban but dropped the request after the judge directed them to use the e-mail system. Still, use of the system has been sporadic and Rossiter suspects bans continue to be imposed without notice. "I think you still have the lingering old system."

While ban requests may continue to fall through the cracks, the Nova Scotia experiment shows Ad IDEM's proposals are workable. The organization may have a tougher time convincing prosecutors to take a proactive role when bans are sought. Shrinking budgets make it less likely that media outlets notified of a ban application will be able to afford the legal bill to challenge it. So Kroft's committee believes Crown attorneys, as the public's representatives, have a duty to ensure judges are aware of the legal criteria for imposing a ban.

Even when the prosecution is seeking the ban, Kroft contends, a Crown attorney "has an obligation not only to prosecute, but to ensure the court is aware of the broader public interest in open court and what the Supreme Court has had to say about that." While MacLellan agrees that counsel have an obligation to inform the court, she's hopeful that notification systems will enable media lawyers to fight their own battles and prosecutors won't be expected to become "advocates for the media."

Last November, the Supreme Court of Canada unexpectedly solved the problem. In a pair of unanimous rulings, the court rejected Crown and police bids for bans on details of an elaborate undercover operation designed to coax confessions from murder suspects [R. v. Mentuck, 2001 S.C.C. 76; R. v. O.N.E., 2001 S.C.C. 77]. The court imposed a duty on judges to weigh public access rights when considering whether to impose a ban, even if the media does not press for access. The presumption "that the courts should be open and reporting of their proceedings should be uncensored is so strong and so highly valued in our society that the judge must have a convincing evidentiary basis for issuing a ban," the court said in Mentuck. "The absence of evidence opposed to the granting of a ban ... should not be taken as mitigating the importance of the right of free expression ...."

Ad IDEM has designated members across the country to promote the registry and the e-mail notification system. "The object is to bring this onto the court agenda in each of the provinces, hopefully get the judges talking amongst themselves," Kroft says. The group has endeavoured to balance the interests of the courts, the media, and litigants. "This isn't proposing to change the law. This is proposal to create procedures that will allow the law that the Supreme Court has laid down to be administered in a way that appropriately protects all of the interests that are entitled to protection"

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Dean Jobb, a reporter for The Chronicle-Herald, teaches media law at the School of Journalism, University of King's College in Halifax. An earlier version of this article appeared in the October 2001 edition of Canadian Lawyer.