It will probably come as no surprise to anyone where I stand on publication bans.
I don’t like them.
It is not just because they tie my hands, however; there are some very good reasons why the practice of granting them should be stopped, or at the very least, why judges should be allowed to rule on them on a case by case basis.
Last week at the bail hearing of Alan John Davidson, the defence requested a publication ban on evidence presented. When the defence asks for a publication ban on a bail hearing, the judge has no discretion; it is mandatory.
If the Crown asks, the judge can deny it, particularly if the defence does not want one.
One of the main reasons for having a publication ban on evidence presented in court at a bail hearing or preliminary inquiry is to prevent potential jurors from becoming unduly influenced by media reports prior to trial.
In Canada, the vast majority of cases never make it to a jury. For most of those that do, it should not be a problem with properly selected and instructed jury members.
But that is not the main issue. In the Davidson case, just as an example, the judge had to decide if the defendant should be released or remanded in custody. The Crown presented its evidence as to why he should not be released and the defence rebutted. The defence won, but I can’t tell you why.
There are three grounds for holding somebody, primary, secondary and tertiary.
The primary ground is that the prisoner might be a flight risk. The secondary is that there is a likelihood he will reoffend. The tertiary is that his release would undermine the public’s trust in the administration of justice.
It is on that final ground that I believe the whole concept of publication bans fails.
Davidson is accused of molesting, or attempting to molest, youths under the age of 18.
Particularly in cases like this, it is in the public interest to know not just what the judge’s decision is, but how he came to the conclusion he did to release the alleged offender.
When journalists report a result in which an alleged sex offender is released, I know very few people who react by thinking “I trust that the judge did they right thing.” In the absence of context, without an airing of the evidence, the more common reaction is the opposite.
In other words, the very fact of the publication ban undermines the public’s trust in the administration of justice.
These bans do end when the case is concluded, but at that point it is moot. The public has a right to know right now on what basis the judge turned an alleged, and therefore, for many people, a potential child molester out on the streets.
I am not against all publication bans. Obviously where it exists to protect the identity of underage victims, I don’t have a problem with it.
And there are circumstances in which the defence may be able to make a case that publishing evidence presented during an ongoing case could undermine the defendant receiving a fair trial. I believe the defence should have to make an argument for it, however.
One of the fundamental principles of our justice system is openness. Except in very rare cases, any member of the public has the right to walk into court and hear the evidence at a bail hearing. The media is an extension of that public right and the granting of publication bans should be the exception, not the rule.
