Limiting the Imposition of Mandatory Publication Bans in Bail Hearings: Toronto Star Newspapers Ltd v Canada
In Toronto Star Newspapers Ltd v Canada, 2009 ONCA 59, released January 26, 2009, the Ontario Court of Appeal (“ONCA”) considered the interpretation and constitutionality of s. 517 of the Criminal Code, which provides:
517. (1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as
(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.
In June 2006, seventeen individuals – twelve adults and five young persons – were arrested for terrorism-related offences. There was extensive media coverage of the arrests and of allegations that the accused had bomb-making materials and were plotting to blow up various public buildings such as the Parliament buildings, that they had attended terrorist training camps, and that they were inspired by al-Qaeda and had links with terrorist organizations in the United States and Europe.
On June 12, 2006, at the request of one of the accused, Justice of the Peace Currie imposed a ban on the publication of proceedings at the bail hearings pursuant to s. 517. Although some of the accused did not want a publication ban, it was ruled that since they were jointly charged, the ban applied to the proceedings in relation to all of them.
Media organizations – Toronto Star Newspapers Ltd., The Canadian Broadcasting Corporation, The Associated Press, and CTV Television Inc. – subsequently sought an order quashing the publication bans in relation to those accused who did not seek the bans, and a declaration that the mandatory publication ban violates s. 2(b) of the Charter and should be declared of no force and effect. The application judge followed Re Global Communications Ltd and Attorney General for Canada (1984), 44 OR (2d) 609 [Re Global], finding that when one of several jointly charged accused persons seeks a mandatory order under s. 517 it applies to the bail hearings of all the accused, and upheld the validity of the impugned provision.
The ONCA Decision
A five-judge panel presided at the hearing at the Court of Appeal, as the appellant media organizations requested the court to overrule its prior decision in Re Global. The Ontario Court of Appeal allowed the appeal, finding that Re Global “does not reflect the values of the Charter as they are now understood, and the decision is inconsistent with later decisions of the Supreme Court of Canada, especially Dagenais” (para 117). The court agreed with the application judge that a publication ban imposed under s. 517 must apply to all jointly charged accused even where only one accused asks for it. What divided the court, however, was the scope of the unconstitutionality of s. 517 and the appropriate remedy.
However, there was no debate that the s. 517 infringed s. 2(b) of the Charter, and the court was unanimous in finding that it was not saved by s. 1. The court accepted the Crown’s submissions that the objectives of the legislation were not only to protect the accused’s right to a fair trial by an impartial jury but also to ensure expeditious show cause hearings. To require the justice to give notice to the media and hold a hearing to consider whether a discretionary ban is appropriate whenever an accused requests a publication ban under s. 517 could result in unreasonable delay in the bail proceedings.
The majority of the Court of Appeal, per Feldman J.A., found that the s. 517, to the extent that it mandated a publication ban on bail proceedings where a future jury trial was not possible, failed the Oakes test; however, once the mandatory ban was limited to situations where a future jury trial was possible, the provision could be saved under s. 1 of the Charter. Thus, the majority added some words in order to read down the section so that it would only apply where the accused could be tried by a jury:
517. (1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused where and for so long as the charge(s) may be tried by a jury, … [emphasis in original]
The dissent, per Rosenberg J.A., on the other hand, was of the opinion that the impact of pre-trial publicity was merely “speculative” and that other measures short of a contemporaneous ban on publication of the entire proceedings would be sufficient to protect the fair trial rights of the accused. Rather than imposing a mandatory publication ban in any bail hearing, Rosenberg J.A. would have declared the words “and shall on application by the accused” in s. 517 to be of no force and effect, thereby leaving only the discretionary ban. Rosenberg J.A. also would have suspended the declaration of invalidity for 12 months to give Parliament the opportunity to consider whether it would be necessary to amend s. 517 so that a justice of the peace or judge can impose a limited publication ban.
At bottom, the difference between the majority and dissenting opinion is informed by the different perspectives of each judge. While Rosenberg J.A. is concerned with theory, Feldman J.A’s opinion discloses a greater sensitivity to the practical concerns relating to the operation of publication bans in the electronic age.
For example, Justice Feldman rejected the reasoning of Justice Rosenberg that in the period of time between the bail hearing and the trial — which may be months or longer — any prejudicial information which potential jurors may have heard or read through the media would have faded in their memory. As she noted: “[o]nce something has been published, any juror need only “Google” the accused on the Internet to retrieve and review the entire story” (para 177). She also observed that a change of venue may no longer be an effective remedy to eliminate the risk to a fair trial from publication of prejudicial information from the bail hearing “because the Internet preserves pre-trial publicity and search engines like Google make it easy for any person to access this information, regardless of location or time” (para 222).
Another practical matter considered by the majority is the issue of cost to the accused, especially where the accused is dependent on legal aid:
 At this point in time, it is unclear how legal aid will approach and address the problem that counsel will require funding to seek discretionary publication bans or tailored remedial orders such as change of venue, as well as to conduct trials out of town if changes of venue are ordered. We know that legal aid funds are limited and are being stretched to accommodate increasing needs. This is also a practical factor when we are discussing the salutary versus deleterious effects of a current measure that is simply applied and cost-effective.
Feldman J.A. also recognized how unreasonable it would be for bail courts to hold extended hearings for discretionary publication bans and the very possible likely result of such were to occur:
 In Ontario, the current problem with overburdened bail courts was recently highlighted by the decision of De Filippis J. in R. v. Jevons  O.J. No. 4397 (Ont. C.J.), where he stayed criminal charges on the date fixed for trial because of the delay in the accused’s bail proceeding. In his reasons, De Filippis J. gave a detailed account of the accused’s 8-day ordeal waiting for a court to have the time to hear his bail application. In his affidavit on the stay motion, the accused testified that when the Crown finally agreed to consent to bail, he was “prepared to agree to just about anything to secure…release” and he had “serious doubts” that he would ever obtain a bail hearing (para. 13).  De Filippis J. also described the backlog plaguing the bail courts in the Durham region and the fact that, for the week in question, the court was unable to deal with the majority of contested bail applications and only had time for consent bails and adjournments. De Filippis J. concluded that the accused was the victim of systemic delay in the bail system in Durham region and that his Charter right to reasonable bail under s. 11(e) was infringed, as was his liberty interest under s. 7.  In summary, in order to be of practical value to an accused seeking to protect his or her fair trial right through a publication ban on the bail proceedings, the ban must be mandatory and not discretionary. The existing procedure for seeking a discretionary ban under Dagenais puts a heavy and difficult onus on the accused and, if implemented following Rosenberg J.A.’s analysis, appears to have little likelihood of success. In fact, counsel for the appellants acknowledged that very few discretionary bans would likely be granted and eventually accused persons seeking bail would not ask for publication bans, thereby solving any delay and cost problems associated with seeking the discretionary order.  The consequence could be that accused persons could be forced to choose between compromising their fair trial rights by proceeding with their bail application without a publication ban, or foregoing the right to seek bail in order to ensure that prejudicial information disclosed in the course of the bail hearing is not published.
Indeed, anyone who has visited a courthouse in downtown Toronto would see that, in such a hectic environment, it would be extremely difficult for an accused to make any submissions at length and for the presiding judge to carefully balance all relevant factors to decide whether a publication ban ought to be imposed.
The majority decision is not without its shortcomings. According to Feldman J.A., the ban under s. 517 “is time limited and does not preclude the public and the press from attending the hearing . . . [T]he temporary nature of the ban ensures that the proceedings are not in any way being hidden from the public or that they will not be subject to public scrutiny.” (para 232) However, Justice Rosenberg’s observation that s. 517 is “a dramatic curb on freedom of expression” is certainly worth noting:
 While s. 517 does not prevent anyone from attending court to witness the operation of the bail system first hand, the section effectively prevents access to the courts for most of the population. As has been repeatedly said, very few people have the time to attend court proceedings; everyone else must depend upon the media for information about the court system. Section 517 thus interferes with the effective operation of the principle of open courts.
However, the biggest issue with this judgment is that the ONCA has changed the law with regard to publication bans in bail proceedings. Both the majority and the dissent invited Parliament to consider amending s. 517 “to achieve the constitutional objectives of the legislation” (para 253). However, the ONCA decision seems to run afoul of a recent decision of the Alberta Court of Appeal with on a similar issue, R v White, 2008 ABCA 294. Therefore, it seems reasonable to suspect that Parliament will stay out of the fray until the Supreme Court of Canada weighs in on one of the decisions.