Legal Affairs

A thankless task
By Eliza Walsh and Jennifer Haynes

Someone has to combat publication bans
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There is little we can tell you about Algerian refugee Samir Ait Mohamed. It's possible this man poses a dire threat to national security, but because of the blackout the Immigration Review Board has imposed on his case, the risk is unknown. We do know that by taking advantage of the refugee system, he prolonged his stay in Canada on a 1997 visitor's visa for four years. We know that he has long been involved with an terrorist ring linked to Osama bin Laden. We also know of some frightening allegations: Mohamed purportedly attempted to set up a terrorist camp here, worked to procure false passports for other terrorists, and plotted to bomb a Jewish neighbourhood in Montreal.

As students of journalism, we have come to understand the importance of recording and interpreting the functions of society's institutions, including the courts.

It is a scenario that may shock and enrage you. But what is no less alarming is the fact that the Canadian government would have you know absolutely nothing about this case. The review board imposed an in-camera order, meaning not only were journalists banned from reporting on Mohamed's hearings, but members of the public were banned from attending. In short, no one outside of the government could know the truth. And up to this date, they still will not tell us why.

The scant details that authorities released on the Samir Ait Mohamed case provide just enough information to induce fear in a post-September 11 public, though not enough for Canadians to be able to question specific government policy or action. Which is why there has been little public outcry over this case — save from the media. It was a team of media lawyers who finally had the in-camera order lifted on this case, after months of delegation. The incredible secrecy surrounding this case is one reason it is unlikely to provoke the kind of outrage of another that was banned from the public: the Bernardo case.

It was during the Bernardo and Homolka trials that Canadians felt the full gravity of what it meant to be denied freedom of the press. Though the case is almost seven years old, public anger over the secret deal that Homolka struck with the crown has not subsided. And who can forget the cross-border pursuits by Canadians for details of the deal that only American media could provide? If the Bernardo case took place today, the courts would be forced to take more intrusive steps to halt the flow of information that could be more easily accessed through the Internet or satellite TV by the average Canadian than it was in 1995.

Philosopher Jeremy Bentham said "publicity is the very soul of justice," and in Canada an open justice system is considered the cornerstone of democracy. Publication bans must be ordered in some cases, such as to protect the identity of victims of sexual assault who are under 18. In other cases judges are able to order discretionary bans that satisfy a test where among other factors, they must balance the rights of the accused to a fair trial with freedom of expression.

Despite their relative frequency and importance within the Canadian legal system, publication bans have received surprisingly little attention from legal and media scholars alike. From books to periodicals, and even newspapers, little has been published that provides a critical examination of bans in Canada.

Honickman says that by the time a media organization has decided a ban on a case is worth fighting, the window of opportunity to contest the ban has often passed.

As students of journalism, we have come to understand the importance of recording and interpreting the functions of society's institutions, including the courts. Publication bans limit two of our most fundamental freedoms — freedom of the press and freedom of speech — and yet there is a disconcerting lack of qualitative or quantitative analysis on the subject. This spurred us on to investigate further, and in our research, we could find no statistics that catalogue the number, rate or frequency of publication bans, a fact that was also lamented by legal specialists in the area.

Cases like Samir Ait Mohamed's remind us that banning information from the public in Canada is an issue that requires consistent attention and vigilance on the part of the media, which are often the sole voice of dissent among the secrecy.

In recent years, the media have achieved other important victories in lifting bans, but one of the main obstacles that remains is the time and extraordinary cost involved in fighting bans in court. The cost alone makes fighting them a non-option for small and medium sized newsrooms.

Peter Jacobsen has served as legal counsel for a number of media outlets, including Media magazine and The Globe and Mail. He was one of the lawyers who worked successfully to have part of the ruling in the infamous Just Desserts case (where a 23-year-old hairdresser was killed during an armed robbery at a Toronto café) made public after evidence against one of the accused fell apart. Jacobsen says that not only do journalists often lack the resources to contest bans, but he adds that the courts often make it difficult for them to do so effectively.

"One of the reasons that they're not [fighting bans] is because it costs so much," says Jacobsen. "You have to hire legal counsel; you get hit with a brick wall, and often the other side does not make it easy."

Gene McCarthy, a court reporter for the Kitchener-Waterloo Record for over 25 years, says that the tedious process journalists have to go through to argue against a ban discourages challenges.

" [A journalist] must go to the editor, who in turn has the newspaper's lawyer go before the judge or justice of the peace making the order, and argue that it ought not to have been imposed," explains McCarthy. "This happened during my years in court, I recall, about six or 10 times."

Lorne Honickman, an expert on publication bans, is both a media lawyer and a journalist. He agrees that the process makes it difficult for journalists to be effective in the current system. Honickman says that by the time a media organization has decided a ban on a case is worth fighting, the window of opportunity to contest the ban has often passed.

"It's the cost of doing business in a lot of ways," says Honickman. "You find out about a ban, and by the time you say 'Well, I'll get a lawyer, and do something about it,' the issue has moved, the case might be over, and you're moving on to something else. Newsrooms across this country should be vigilant to ensure that any time there's a discretionary ban, and they find out about it, they immediately make an application to determine whether or not they oppose that ban."

But simply finding out about the ban is where the problem begins. Journalists are not automatically notified about bans, and trying to determine the specifics of the bans from case to case in order to argue against them can be painstaking .

"We don't have a registry where a reporter or a member of the public can go and obtain the information about whether there is a publication ban, and if so, what it applies to," says Jacobsen. "Judges quite often don't even write down what the publication ban is."

Honickman is hoping to change this by establishing a nation-wide registry where media could access information on cases where discretionary bans have been ordered. (You can read more about the registry in Dean Jobb's article.) This practice is being tested in Nova Scotia, where the journalists receive notification of bans via the Internet.

"That's what we're hoping to see across Canada. Our position is that there is a lack of uniformity across Canada with respect to notice," says Honickman. "Some judges feel that it's important that the media be given notice, and other judges feel that they have no onus to do that."

Also monitoring bans is a group of media lawyers who formed an organization called Ad Idem in 1995 to address freedom of expression issues in Canada. Ad Idem comprises virtually all broadcast and print media counsel in Canada. President Dan Henry, who is also senior legal counsel for the CBC, says Ad Idem promotes the understanding of issues among media lawyers so that efforts are directed toward the most important cases.

In May 1999, Ad Idem appeared before a House of Commons committee where they advocated the open justice system principle in the wake of a new victim's rights bill. Bill C-79, passed in June 1999, gives judges more power to ban any information that could disclose the identities of victims and witnesses of a given trial. Ad Idem was unsuccessful in amending C-79, but has subsequently been consulted by the Department of Justice over legislation affecting expression in the media. While C-79 was designed to ensure a victim "suffer the least amount of inconvenience necessary as a result of their involvement in the criminal justice system," as some journalists noted, the new bill also served to minimize the concept of an open justice system.

Honickman points out that "embarrassment is never a reason to get a publication ban. In the criminal justice system you have an accused whose life is on the line. When someone comes to court, the accused has to be able to face them, save and accepted they can show a real and significant risk that they are at harm."

Henry says Ad Idem attempted to build on the desire of Parliament to respect victims, but wanted to show that the bill was not serving even the victim's interests as it was introduced. "There are victims who want to talk about their cases. They should not have to get the judge's permission to talk about them."

Compelling as it is to argue for bans that champion a cause like victim's rights, demonstrating the costs of imposing limits on an open justice system is a more difficult task — a task that often becomes the responsibility of the media. It's sometimes a thankless one, but journalists have a duty to the public to monitor institutions like the courts as advocates of the fourth estate. If there's one thing we learned through the ban on the Homolka case, it's that the public has right to know if and how justice is being served.

As Henry notes, "The public are all custodians of the system. The system belongs to all of us. The more we know about the way it functions and know that it is functioning appropriately, the more confidence we can have in it."

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Jennifer Haynes and Eliza Walsh are master's students at the Graduate School of Journalism at the University of Western Ontario. They are the co-authors of a research paper entitled "The Right to Know: Publication Bans in Canada."