Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor ........... Gretchen Drummie Associate Editor ......... Robert Todd Staff Writer ............. Glenn Kauth Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2009 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter A re trials the new reality series, coming to you on your trusty computer? Will courtrooms soon be relegated to the shelf as shiny, new technologies open the door to "virtual hearings?" Can it be true that instead of tod- dling down to courthouses to watch trials, the proposition that "justice must be seen to be done," will be covered in- stead by spectators settling into comfy armchairs with wireless Macs, bags of Cheetos and cellphones to cast votes? I can see it now: "I'm a Criminal … Get me Out of Here!" Or how about "Survivor: The last juror standing." Here's one with potential: "The Amaz- ing Pace," pitting judges in a head-to-head contest to determine who delivers the most convoluted, long-winded decision. And of course there are some that can even recycle time-worn existing reality shows like "The Biggest Loser," June 8, 2009 • Law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clb- media.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Kathy Liotta at 905- 713- 4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Virtual justice? for litigators; "Big Brother," you know who you are; "The Bachelor," there's one in every firm. (My personal favourite double enten- dre: "Last Comic Standing.") Well, the virtual hearing has already happened in the U.K. where Justice Secretary Jack Straw is a big booster of the system that would end the quaint custom of accuseds and victims hav- ing to set foot in a courtroom. By using video links between police stations and magistrates' courts, it's pos- sible to sentence a defendant without him/her ever even darkening the door of a courthouse, The Times reports. In a test case a drunk driver was fined and banned from getting behind the wheel within hours after he was arrest- ed, while another case in which a man refused to give a blood sample, was ad- journed. According to news reports, the test case was held at the Charing Cross police station in London, linked to the Camberwell Green Court. It's said the scheme will save the gov- ernment millions. But lawyers worry whether the virtual courts will actually add to delay. And they fret that having to sit next to convicts in the small rooms during sentencing would be unsafe, al- though as Straw noted, the number of times lawyers are attacked by their own clients is "very rare indeed." Under the plan, there will be excep- tions to what type of trials will be con- ducted this way, but by Sept. 14, other police stations in South London and North Kent will be linked to courts and handling 15,000 cases per year. Michael Brett Young, Law Insti- tute of Victoria chief executive joked: "Will we have virtual courts, which could lead to virtual prison sentences which would no doubt lead to criti- cism by the virtual Herald Sun?" Meanwhile, in the colonies we're still working on allowing cameras inside court- houses much less inside the courtrooms so we probably won't be dragged into this new reality anytime soon. Although, video set dates seem to be working in the criminal system so it's not hard to imagine that at some point it will happen here. I think technology is fantastic and I'm all for positive changes in that realm as you may know by listening to the weekly audio version of this editorial, and as you will soon see if you keep an eye on our website at www.lawtimesnews.com. But I'm wondering what Law Times readers think of the prospect of virtu- al hearings in Ontario? Let's find out. Send your letters or comments to me at gdrummie@clbmedia.ca and I'll post them on our website. Call it: "So You Think You Can Write a Letter to the Editor?" — Gretchen Drummie T Reporting of legal matters a highly-valued activity Social he criminal justice system can appear baffling to non-lawyers. But it is likely bail hearings that create the most visceral reac- tion in the general public. People see a revolving door system of justice and don't understand why suspects charged with serious crimes are released on bail, often within days of their arrest. The public understands the presumption of innocence, yet the perception of a revolving door system of justice persists. The media has something to do with this perception, but the problem is rooted in a lack of openness in the criminal jus- tice system and in particular at bail hearings. The Criminal Code provides for a mandatory publication ban at bail hearings when sought by the accused. The ban is dis- cretionary when sought by the Crown. The result of this is a publication ban in almost every bail hearing that would be of in- terest to the public. The publication ban not only covers evidence prejudicial to the accused, it covers all evi- dence, information given, and representations made. Worse, it covers the reasons for either granting or denying bail. The public cannot be informed why an accused has been released. By not allowing this information to be released, we keep the pub- lic ignorant about this vital part of the justice system and create suspicion and distrust. The dis- trust leads to ill-informed opin- ions, which in turn can lead to the creation of negative compro- mises in the bail system. Arguing that these proceed- ings are open to the public is spe- cious. Very few members of the public attend any court proceed- ings, let alone short bail hearings. The media may represent the community but the media is only able to send reporters to the most high profile of cases. This brings me to the Janu- ary 2009, 3-2 Ontario Court of Appeal decision upholding the Justice By Alan Shanoff mandatory ban when sought by an accused while ruling that the mandatory ban should only apply to bail hearings for charges that might result in a jury trial. The dissent would have struck down the manda- tory ban in its entirety. There is no doubt that a mandatory ban infringes section 2(b) of the Charter of Rights and Freedoms. The only poten- tial justification for the ban must reside in the protection of an ac- cused's fair trial interests, that is the right to a fair trial in front of an impartial jury. Even in charges that may re- sult in a jury trial, how can we justify a mandatory publication ban of everything short of the decision many months, if not www.lawtimesnews.com years before the ultimate trial? With the many demands made upon our attention spans, how can we justify a violation of a Charter right on speculation that potential jurors will retain some subconscious bias against an accused? There are meth- ods by which a court can rid itself of partial jurors and there is no right to an uninformed jury. Jurors can be impartial in spite of having been exposed to pre- trial publicity. I'd argue that it is the gossip percolating through a community that creates the most risk of harm to fair trial rights. The majority of the appeal court argues that we cannot rely on jurors' faded memories of any pre-trial publicity due to the Internet and the ability of a juror to "Google" an accused. Surely we cannot justify, even partially, a Charter breach on the Internet. And if technol- ogy can justify mandatory bail publication bans then we will have to rethink the sub judice contempt of court laws. Currently these laws are flex- ibly applied to allow potentially prejudicial information to be published at the earlier stages of a criminal proceeding. This is justified, in part, by the lengthy passage of time between the publication and the trial date. If technology can be used to justify a mandatory bail publication ban it can surely also justify a whole- sale change in the application of contempt laws thereby further eroding the information that may be published prior to trial. Let us not forget that report- ing of legal matters is and should remain a highly-valued activity. It increases public confidence in the law. It sheds light on the activities of police, prosecutors, and judges. Without this light we create ignorance and distrust. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He cur- rently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com.

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• Oaths of Office
• Social Justice
• Focus On Internet/E-commerce Law