News Update: Mandatory Publication Bans Are Constitutional

The SCC inflicted a huge blow to the media last Thursday with the release of its joint decision on two appeals regarding the constitutionality of mandatory publication bans under s. 517 of the Criminal Code. Pursuant to an application by the accused, s. 517 requires a judge to order a publication ban on “evidence taken, the information given or the representations made and the reasons…given by the justice” during a bail hearing. The ban will be in effect until the accused is either discharged after a preliminary inquiry or the trial is concluded. In Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, the SCC rejected Toronto Star Newspapers Ltd.’s (Toronto Star) argument that the provision is an unjustifiable violation of the freedom of expression guaranteed in s. 2(b) of the Canadian Charter of Rights and Freedoms.

Since previous posts by my colleagues Regina Lee and Ankur Bhatt have already discussed the facts and reasoning in the appeal decisions of Canadian Broadcasting Corporation and Toronto Star Newspapers Ltd., my synopsis on the two cases will be brief. Whereas the Alberta Court of Appeal upheld the constitutionality of s. 517 in Canadian Broadcasting Corporation, the Ontario Court of Appeal (OCA) in Toronto Star Newspapers Ltd. found that s. 517 was overbroad and read down the provision to exclude from the ban any cases in which the charges would not be tried by a jury. Feldman J.A., writing for the majority of the five-panel OCA, reasoned that the objective of the ban was to protect the right to a fair trial by shielding the jury from potentially prejudicial information. Since s. 517 applied to all bail hearings, regardless of the mode of trial, it did not meet the minimal impairment test and thus had to be read down.

Challenging the Constitutionality of s. 517

Toronto Star argued that judicial discretion regarding publication bans was a constitutional threshold based on existing precedent relating to discretionary publication bans. In support of its position, Toronto Star pointed to the SCC’s emphasis on the role of judicial discretion in its determination of the validity of s. 486(1) of the Criminal Code in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480. Discretion allows the judge to consider the justification for the ban in light of the circumstances, which in turn, allows for justifiable limits on the freedom of speech. Mandatory publication bans outright deny judicial discretion across the board, and thus are unjustifiable limits on the freedom of speech. The SCC ultimately rejected Toronto Star’s argument and held that the Oakes test, and not the presence of  judicial discretion, was the appropriate means to evaluate the constitutionality of s. 517.

The Oakes Test Analysis: The Limit on Free Speech is Justifiable

Despite Toronto Star’s persuasive arguments, Deschamps J., writing for the majority, applied the Oakes test to find that s. 517 is constitutionally valid. In the first stage of the test, she found that the objectives of safeguarding the right to a fair trial, and ensuring expeditious bail hearings, were pressing and substantial. The majority came to this conclusion based on the findings of the highly influential Ouimet Report of 1969, a study on bail rules. The authors of the report  argued that bail rules should respect the presumption of innocence, and interfere with personal liberty as little as possible.

Pursuant to the second stage of the Oakes test, the SCC held that there was a rational connection between mandatory publication bans and the aforementioned objectives. To reach this conclusion, it looked at the nature of bail hearings. Specifically, the informality of the hearing, the low standards for evidence adduced at the hearing, and the short time frames for bail processes were connected to the objective of an expeditious hearing. The ban itself protects the right to a fair trial by preventing the dissemination of prejudicial information that may be inadmissible or irrelevant at trial.

In the third stage of the Oakes test, the SCC held that mandatory bans minimally impair the right to freedom of speech. Deschamps J. provided several reasons why no other means could achieve Parliament’s objectives while impairing the right to freedom of speech as little as possible. One reason was the unfeasible alternative of holding a publication ban hearing. It would only burden the accused, who is already busy preparing for his or her bail hearing. As well, the additional hearing would create delays for the accused, an effect counter to existing bail processes, including the requirement that a person who is arrested and detained be brought before a justice “without unreasonable delay”.

In her discussion of minimal impairment, Deschamps J. provided additional reasons that detracted from the strength of the aforementioned reasons. For example, she noted that the ban in s. 517 is not an absolute ban on either access to the courts or on publication. She wrote:

The provision only prohibits the publication of evidence adduced, information given, representations made, and reasons given by the justice at a bail hearing. But the media can publish the identity of the accused, comment on the facts and the offence that the accused has been charged with, and that an application for bail has been made, as well as report on the outcome of the application. Journalists are also not prevented from informing the public of the legal conditions attached to the release of the accused.

Although Deschamps J.’s description of the information that is available for media publication depicted the impairment as being minimal, the fact remains that the public is denied access to crucial information on why a particular decision is made. Abella J., writing for the minority, pointed out that s. 517 automatically prevents the disclosure of a judge’s reasons and any information at a bail hearing whenever the accused requests a ban. Her dissenting decision is persuasive to the extent that it does pay sufficient weight to the necessity of maintaining transparency in judicial reasoning in order to maintain the public’s confidence in the legal system.

The majority did make the valid point that publication ban hearings would add to the burden of the accused and create delay, though I am not entirely convinced that a mandatory publication ban that is automatically granted upon the accused’s application should always operate until the end of a trial. As mentioned earlier, s. 517 requires that a publication ban remain in effect until the accused is discharged after a preliminary inquiry, or the trial is ended. The majority argued that the right to a fair hearing justified the ban on publishing information prejudicial to the accused. It reasoned that jury instructions would be insufficient to remedy the release of prejudicial information. This line of reasoning ignores the reality that it is commonplace for judges to instruct the jury to disregard information. It is unclear to me why the publication of information subject to a publication ban prior to, or during the course of a trial would unfairly prejudice the accused when jury instructions have proven to be an effective remedy.

Consistent with the OCA’s decision in Toronto Star Newspapers Ltd., I believe that non-jury trials obviate the majority’s concern that the accused’s right to a fair trial will be prejudiced. At the least, the SCC should have upheld that aspect of the OCA’s decision and read down s. 517 so that the provision does not apply to non-jury trials. The SCC’s analysis would have been more comprehensive if it had addressed the need to uphold a ban until the accused is discharged or the trial is over.

In the fourth stage of its analysis, the SCC found that the salutary effects of s. 517 outweighed the deleterious effects of s. 517. In terms of the salutary effects, Deschamps J. first noted that evidence produced during a bail hearing is presumptively inadmissible, and may not aid in the ultimate search for truth during the trial. She also observed the unfortunate reality that bail courts are often overburdened. Deleterious effects of the bans include the inability of the media to report on issues that should be part of public debate. Mandatory publication bans also prevent full public scrutiny of the criminal justice process. Nonetheless, “the need to ensure certainty and timeliness, to conserve resources, and to advert the disclosure of untested prejudicial information” outweighed those deleterious effects.

To summarize, the decision in Toronto Star Newspapers Inc. is somewhat unsatisfying for those of us that value both the rights of the accused and the freedom of speech. A more satisfying outcome would have been a more narrow reading of s. 517. In the future, the courts should try to limit the scope of s. 517 so that mandatory publication bans account for the mode of trial and circumstances.