Case Report – Ont. C.A. considers pre-trial publicity, jury contamination and the internet’s long memory

On January 26th, a 3-2 majority of the Ontario Court of Appeal held that the mandatory ban on publication of bail proceedings when requested by an accused violates the Charter-protected right to freedom of the press and is not saved by section 1. The majority read down the Criminal Code ban so that it applies only to charges that may be tried by a jury.

All members of the panel agreed that the mandatory ban breached freedom of the press. They also agreed on the purpose of the ban:  to ensure a fair trial by promoting expeditious bail hearings, avoiding unnecessary detention and allowing accused to retain scarce resources to defend their cases. The panel members differed, however, on how to apply the Charter‘s saving provision, section 1.

The majority, in judgement written by Madam Justice Feldman, held that the ban was over-broad in its application to charges that may not be tried by a jury. While finding that judges are “professional decision-makers” immune to the influence of pre-trial publication, the majority was not willing to invalidate the legislation as it applied against juries given the conflicting social science evidence on the impact of pre-trial publication on jury decisions. It held that the legislature is entitled to act upon a “reasoned apprehension of harm” in enacting laws based on such disputed domains.

The minority, in a judgement written by Mr. Justice Rosenberg, held that the conflicting evidence was a basis for striking down the ban in whole (with a 12 month suspension). The minority held that the salutary effects of the ban did not outweigh its deleterious effects because the causal connection between pre-trial publicity and jury contamination is weak and speculative.

Both the majority and minority made comments on the internet and the concept of practical obscurity.  The majority said:

It is also, in my view, no longer appropriate or realistic to rely on jurors’ faded memories of any pre-trial publicity by the time of the trial as the basis for confidence that they will not remember what they read or heard. Once something has been published, any juror need only “Google” the accused on the Internet to retrieve and review the entire story.

The minority made a similar note:

On the one hand, the salutory effect of any publication ban is undermined by the ease with which the ban can be circumvented.  On the other hand, because of the nature of the Internet, information first published at the time of the bail hearing is always accessible, right up to the time of the trial.  In other words, the court cannot always simply rely upon the fact that time will have passed from when the information was first published and that this passage of time will lessen any prejudicial effects of the information.

On the whole, perhaps all that can be said about the efficacy of publication bans in the era of mass communication and the Internet is that the salutory and deleterious effects are uncertain.

The concept of practical obscurity is one favoring the maintenance of an individual’s privacy interest despite the disclosure of information because the information can be hard to find or recall.

For more detailed commentary, see the Court’s summary here.

Toronto Star Newspapers v. Canada, 2009 ONCA 59.

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