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April 22, 2005
The Latest In Publication Bans: Protecting Released Gang Members

CQ reader Ed in Canada points out the latest in publication bans north of the 49th, in the case of a suspected gang ringleader who violated his bail agreement. Not only did the Canadian judge release Michael Kim, Marlene Graham refused to allow the Canadian media to report why Kim was freed from custody:

Suspected high-ranking gang member Mark Kim received a belated 21st birthday present yesterday -- freedom pending his trial on weapons offences. Provincial court Judge Marlene Graham refused a Crown request to revoke Kim's bail on the charges after he was picked up for allegedly breaching his bail conditions.

Kim, who spent his birthday Wednesday behind bars, was arrested April 13 on a charge of violating an 8 p.m. curfew imposed as a condition of his release. But Graham agreed with defence lawyer Charlie Stewart's assertion his client should not have to remain in custody as a result of the allegation.

A publication ban was imposed on submissions at the hearing and Graham's reasons for releasing Kim.

The city man was initially arrested April 8, along with two other alleged gang members, after police stopped an SUV at 16 Ave. and Stoney Tr. N.W. Police said a fully loaded Glock pistol and a collapsible baton similar to ones used by officers were seized.

Any court action involves at least two parties, a plaintiff and a defendant. In torts, these people are easily identified. However, in criminal cases, the fact that the People of the community have standing as a plaintiff, represented by the district attorney or an equivalent, is often overlooked. The People have an interest in ensuring that Kim does not have an opportunity to do more harm to the community, especially since Kim does not seem amenable to following the rules even on his own bail. Someone who rides around with illegal weaponry, and then who defy a court order after charges are filed, sounds like someone who could do significant harm to the People.

Continuing bail sounds foolish in this instance, but it certanly falls within Graham's purview to make that decision. However, she owes the People an explanation as to why she does not feel Kim presents any imminent danger to the community. That means in a public court proceeding, the Canadian media should have the right to publish her decision. Surely Graham cannot argue that a favorable ruling for Kim would spoil a jury pool and impact Kim's right to a fair trial. It looks more like Graham herself does not want to be held accountable for her decision, which makes the question of why she released Kim even more pressing.

In the meantime, now we have gang leaders violating bail on weapons charges being freed under publication bans, while Jan Vahey -- who never committed a crime or has even been accused of committing one -- sits under a gag order which would put her in jail if she even comments on her own legal status in public. There's something Lewis Carrollish about Canada and free speech these days.

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Posted by Ed Morrissey at April 22, 2005 5:51 AM

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