In a B.C. court on Friday, an application will be heard to determine whether a publication ban should be placed on the identities of undercover officers involved in a robbery investigation.
A notification email about the hearing was sent out on Thursday, a procedure that is routine in B.C, Nova Scotia and Alberta where the media are informed in advance of Crown or defence motions to exclude the public from the courtroom, seal evidence or impose a publication ban on the identity of an accused, victim or witness that is not mandatory under the Criminal Code.
The intent is to ensure that the constitutional rights to freedom of the press and freedom of expression are carefully considered.
But Ontario has no such notification system in place.
So when a rare, sweeping publication ban is requested, like the one keeping the identity of two parents convicted of manslaughter in the death of their 2-year-old daughter secret, the media may be denied an opportunity to argue otherwise on behalf of the public.
It has been two decades since the landmark Supreme Court of Canada decision in the Dagenais case established that the media should be given reasonable notice when a publication ban is applied for, and allowed to make submissions on whether the ban should be granted.
“I would have thought that 20 years on now from Dagenais we shouldn’t still be fighting a battle on the basic requirement of notice. But we are,” says media lawyer Iain MacKinnon.
Some publication bans are imposed automatically, like the one pertaining to the identity of an accused youth. Some must be granted if requested, like publication bans on the identity of a complainant in a sexual assault case or on evidence in a bail hearing.
But many publication bans, prohibiting reporting on the identities of the accused, of witnesses or evidence, are made at the discretion of judges.
“These kinds of discretionary publication bans are a serious intrusion on the freedom of the press and interfere with public right to know what goes on in the courts,” says media lawyer and Ryerson adjunct professor Brian Rogers, who has represented the Star.
“I would say it’s a constitutional requirement that the media has to weigh in,” said lawyer Iris Fischer, who has represented media outlets, including the Star.
Yet the notification process in Ontario is “very much ad hoc,” Fischer said. “Sometimes reporters will be sitting in a courtroom when a publication ban is sought and find out that way. On rare occasions, I have seen Crown counsel send out written notice to major media outlets.”
That doesn’t assist freelancers, bloggers and smaller media outlets, she notes.
It’s impossible to say how often applications for discretionary publication bans are heard and granted without the media being notified, but it is a concern, says media lawyer Ryder Gilliland, who has represented the Star.
“The media, and by extension the public, have an interest any time there is a curtailment of a presumed right of access to open court.”
In some cases, judges do order that the media be notified before a hearing on a publication ban occurs. But there are no formal procedures in Ontario laying out how much notice should be given, or which media outlets should be contacted.
Media were not notified of a publication ban request by the Crown in a Brampton trial where two parents were convicted last week of manslaughter in the death of their 2-year-old daughter. The broad discretionary publication ban covering the identities of the parents and the little girl was intended to protect a surviving sibling. However, there have been cases in the past where such publication bans have been narrowed to allow the identities of the accused and victim to be published while still protecting the identities of surviving family members.
“It is up to the presiding judge or justice to direct that notice be provided to other persons affected by the order, which may include the media,” said Brendan Crawley, spokesperson for the Ministry for the Attorney General, in an email. “In Ontario, in cases where a judge directs the Crown to provide notice to the media, the Crown, often with the assistance of the Ministry’s Communications Branch, will comply with the court order and contact local or provincial media outlets as required.”
In Nova Scotia, where an online notification procedure has been in place since 2001, according to John Piccolo, director of communications for the Nova Scotia judiciary, notice can range from three months to five days.
An online form filled out by the lawyer requesting the publication ban is distributed to a list of about 100 subscribers, mostly media outlets and media lawyers.
In Alberta, notice to registered media must be provided at least three days in advance, according to the instructions of the chief judge of the provincial courts.
This applies to any lawyers seeking a court order that could restrict “public access to, or the media’s ability to fully report on, court documents or proceedings.”
A 2006 report to the attorney general by a comprehensive Justice and the Media panel lauded the notification systems of the three provinces and recommended that “the Ministry of the Attorney General and the judiciary establish an electronic notification system for discretionary publication bans to provide basic information in a timely manner.”
That has not happened.
Rogers and the Canadian Association of Media Lawyers have raised the issue a number of times over the years.
He says government staff have told him the Ontario system is far more complex and larger than in Nova Scotia, Alberta or B.C.
But Rogers wonders whether, like in B.C. where the notification system only covers Vancouver and New Westminster courts, a pilot project couldn’t be implemented for at least one region.
“It only makes sense,” he says. “The key problem is that publication bans are sometimes looked at as pesky issues that get in the way of getting on with the trial. . . The reality is that the media can’t be there all the time. But if (the courts) worry they could be, they might be a little more serious.”