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June 8, 2005
Another Canadian Publication Ban

During the time I reported on the Gomery Inquiry testimony of Jean Brault in defiance of the publication ban, I received many e-mails thanking me for the effort -- but I also received a few that expressed opposition to its publication on my blog. A few of those tended to be nationalistic, but the rest politely questioned my motives for defying the ban. They argued persuasively that the ban had intended to protect the upcoming trials of Brault, Coffin, and Guit from being derailed by information tainting the jury pool, and/or interfering with the rights of the defendants to receive a fair trial in the court instead of by the press.

Needless to say, although some of those arguments were undeniably eloquent, I disagreed with their basic premise that citizens could not tell the difference between evidence presented in court and hearsay reports in a newspaper. Nevertheless, I also conceded that in the extraordinary case of the Adscam public investigation, those opposing my publication at least had a valid point in arguing for continuing secrecy.

However, the latest in publication bans doesn't even have that extraordinary argument going for it. The pre-trial hearings of accused serial murderer Robert Pickton have come under a broad publication ban. In fact, the defense sought an even broader publication ban on the entirety of the trial, but the judge ruled against the notion of comprehensive gag order for one of the most notorious murder cases in Canadian history:

A British Columbia Supreme Court judge has rejected a bid from accused serial killer Robert Pickton's lawyers who wanted to impose an exceptionally tight publication ban on his trial.

Pickton's lawyers said they were worried that even though a publication ban would forbid Canadian media outlets from reporting on court proceedings, it would not stop Internet sites based outside of Canada to publish reports of what's heard in court.

But lawyers for various news organizations argued the ban the defence was seeking was unworkable. They also noted that, except for one incident early in proceedings, none of the sensational details from the preliminary hearing in 1993 have become wide public knowledge.

Justice James Williams of the B.C. Supreme Court decided that he would not call for a stiffer ban, noting that a section of the Criminal Code that spells out the scope of publication bans in pre-trial hearings is sufficient in the Pickton case.

Instead, he explicitly ordered the media not to report the names or addresses of websites where information from pre-trial hearings might be found, as the media have done in past cases where publications bans were in effect, particularly the Gomery inquiry into the federal sponsorship scandal.

Of course, this highlights a difference between Canada and the US, where trials have a Constitutional requirement to remain open that can only be changed for compelling reasons of security, and usually not even then. That can certainly lead to excesses such as the OJ, Michael Jackson, and Scott Peterson trials, where the majority of our media personalities go to audition for their own cable-news shows. If the excesses do exist, it's more than balanced by the hygienic pressure of full disclosure for both prosecution and the court to behave according to the law and to perform with at least a minimum expected competency. After all, the courts in the US represent the People -- the citizenry of the state or nation -- and the People deserve to see justice being served.

Canada's system has subtle differences, I'm sure, chief among them a lack of a constitution requiring open trials. However, since the publication bans do not automatically apply to pre-trial hearings or trials themselves (Judge Williams had to specifically order it for Pickton's trial), their application becomes by definition somewhat arbitrary. It seems that Canada has at least a de facto tradition of open courts, and one would expect openness in direct proportion to the interests at stake for the Canadian public.

Canadians have a solid interest in the Pickton case in ensuring that justice is competently delivered. Someone murdered twenty-seven people, and the community needs to know whether the police have the right man. They also need to ensure that prosecutors and the judge comport themselves competently and lawfully to ensure that the innocent are freed and/or the guilty punished and society protected. All of that may happen under a veil of secrecy, but human history shows those results to be more or less happy accidents.

Publication ban on trials and testimony serve only one purpose: to protect the people who operate the system, not those whom the system is supposed to serve. Canadians may want to ask themselves whether these publication bans will serve the interests of justice for all or provide cover for a few.

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Posted by Ed Morrissey at June 8, 2005 7:47 PM

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