The premier weekly newspaper for the legal profession in Ontario
Issue link: https://digital.lawtimesnews.com/i/50553
Law Times • February 2, 2009 NEWS PAGE 3 Bail hearing battle an issue of 'national importance' L BY ROBERT TODD Law Times awyers say a battle over the media's access to bail hear- ings is almost certainly head- ed to the Supreme Court after On- tario's highest court failed to find consensus on the constitutionality of mandatory publication bans. "This is the kind of issue of national importance that really should be vetted by the Supreme Court of Canada," says Toronto lawyer Christopher Hicks. "The bench is kind of split between [the need for] a fair trial and an open and accessible court sys- tem. They go back and forth." The Court of Appeal's 3-2 decision — which spans 257 paragraphs — came in a Charter challenge by several media com- panies over the management of a case involving 12 adults and five youths arrested in 2006 for terrorism-related offences. The case included allegations that the group was plotting to blow up Canada's Parliament buildings. The challenge targeted s. 517 of the Criminal Code, which forc- es judges and justices of the peace at bail hearings to impose a publi- cation ban when requested by the accused. While the media compa- nies argued against the provision, the federal Crown, Ontario attor- ney general, and several of accused argued it should be upheld. Justice Marc Rosenberg and Jus- tice Russell Juriansz ruled the man- datory publication ban violates s. 2(b) of the Charter. However, the majority decision of Justices Kath- ryn Feldman, John Laskin, and Janet Simmons backed the manda- tory ban, but read down the legisla- tion to apply only to bail hearings that "procedurally may possibly be tried by a jury." Said Feldman for the ma- jority: "A publication ban is needed in jury cases to protect an accused's right to a fair trial under s. 11(d) and s. 7 of the Charter, by preventing potential jurors from learning of prejudi- cial information from bail hear- ings which may never be heard at trial. In my view, because it is also critically important that the rights of an accused under s. 11(e) and s. 7 of the Charter to reasonable bail following an expeditious bail hearing be pro- tected in possible jury cases, the publication ban must be manda- tory at the request of an accused and not merely available at the discretion of the justice follow- ing a hearing on that issue." But Rosenberg said the man- datory ban is too large a threat to freedom of expression. "Section 517 cuts off mean- ingful and informed public de- bate about a fundamental aspect of the administration of criminal justice, the bail system, at the very time that the debate may be most important — when the decision is made to grant or deny bail. It also hinders debate in other cir- cumstances of great public inter- est, as where an accused on bail commits another, perhaps serious crime," he wrote. "The public is left to specu- late about why the accused was released and the justice system is unable to provide a timely and meaningful response because of the statutorily imposed silence." Hicks represented a group of terrorism suspects in the case. While the Supreme Court has made clear there is no hierarchy of It's a matter of 'public policy' Continued from page 1 impropriety if it were committed by government officials in the course of their duty," says Borovoy. "One would hope that the immigration official is telling the truth, because we wouldn't like to think that such a practice would in any way be condoned by our government." Borovoy adds, "The relationship between lawyers and their clients is one of the pillars of our system for administering justice, and it would ill behoove any official of the government to disparage in that way this important part of our justice system." The CCLA would like an independent investigation of Campos' allegations, he says. "To whatever extent there is any question of such wrongdoing by an official of the government, there ought to be appropriate dis- ciplinary measures adopted," says Borovoy. Sandaluk, meanwhile, says he felt like a victim of a fraud when he heard the allegations. "When you have government agents claiming to hold a position of trust with a person who's underground — it's kind of stunning actu- ally when you think about it, that they could completely undermine the solicitor-client relationship," he says. "Not to mention, complete- ly destroy any level of trust I've built up with that individual." Sandaluk and Mamann say they have met with their own counsel and called the Crown's office regarding the matter. "Right now we're getting our own legal advisers together," says Ma- mann. "Once we are in a position to put our case forward, we're going to make a complaint with whatever legal authority is involved in this." Adds Mamann: "This is a matter of great public interest and a matter of public policy that needs to be resolved." "The objective here is to make sure that law enforcement understands that this is not legal, and that they agree not to do this," he says. "Even if we were to assume that it did not happen, the question is, is the govern- ment's position that they have the right to do this nonetheless?" Sandaluk says, "At a minimum, I would want the government to disavow this type of behaviour." LT Untitled-1 1www.lawtimesnews.com 11/25/08 8:46:47 AM the judiciary, and it's the com- munity at large, really." The fact that the media is not forever barred from report- ing on bail hearings — just un- til a trial has ended — must also be factored in, he says. Hicks notes that whenever the appeal court offers a split decision on a point of law such as this, the losing party can take the case to the Supreme Court as a right. "So I imagine they'll go," he says. "It's got legs. It's an issue that's subtle and sophisticated and nuanced. There should be an effort to resolve it." Blake Cassels & Graydon LLP 'The bench is kind of split between [the need for] a fair trial and an open and accessible court system,' says Chris Hicks. 'They go back and forth.' Charter rights, Hicks suggests the right to a fair trail might be viewed as a more crucial tenet. "Fair trial, not [that it] trumps other Charter values like free- dom of expression, but probably has a little more muscle because, as the Supreme Court of Canada has said, the fair trial interest effects so many of the players," says Hicks. "It's not just the ac- cused, it's the prosecution, it's lawyer Paul Schabas represented the appellants in the case, Toron- to Star Newspapers Ltd., the Ca- nadian Broadcasting Corp., The Associated Press, and CTV Tele- vision Inc. He says he is awaiting instructions on an appeal, but adds, "I would expect this is an issue that has to be dealt with by the Supreme Court." Says Schabas: "Even the major- ity recognizes that there's a prob- lem with s. 517 and that it's overly broad in giving the accused a veto on the public's right to know." Bail hearings are one of the most important stages in the criminal justice system, but they have been "cloaked in secrecy" since the early 1970s, when changes were introduced with the Bail Reform Act, says Schabas. "The problem with the ma- jority decision, as I see it, is by reading it down in the way that they've done, it doesn't really ad- dress the problem that the ma- jority has identified," he says. "Which is, if it's there to protect the tainting of jurors, even the majority recognizes that a tiny, tiny percentage of criminal cases end up before a jury." More specifically, as noted by Rosenberg, less than two per cent of criminal cases are tried by a jury. "So having read it down to say, 'Well, if there's a possibility that it could go to a jury, then the accused can ask for a ban,' still in my view doesn't really address the problem of the sec- tion," says Schabas. "The public should be able to scrutinize what goes on at bail hearings," he says. "That's what the minority says — that there's a strong public interest in transpar- ency here, and the concerns that the Crown and some of the ac- cused have raised doesn't outweigh that, because those concerns are largely speculative, and overreach the extent to which the section has some valid objective." LT Trust [ David Payne | Every time you refer a client to our firm, you're putting your reputation on the line. It's all about trust well placed. Wendy Moore Johns | David Tenszen For over 70 years Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. THOMSON, ROGERS Barristers and Solicitors 416-868-3100 Toll free 1-888-223-0448 www.thomsonrogers.com YOUR ADVANTAGE, in and out of the courtroom