Commentary
In an editorial, the Toronto Star explains why it joined forces with major Canadian and American news organizations in June 2006 to challenge a publication ban on the bail hearings of 17 people accused of plotting terror attacks in Canada.It’s time, the paper argues, to rethink routine bans that shroud the evidence heard at pre-trial hearings, particularly when a case deals with allegations of national and international importance.

Judgerejects application by Toronto Star, CBC and New York Times to lift ban. See the CBC Online story.

In recent years, Canadian courts have been quick to impose publication bans, often when they are not warranted. The cases normally range from bans on information revealed at simple bail hearings to bans on the naming of accused in murder proceedings. And last year, Mr. Justice John Gomery, who led the inquiry into the federal sponsorship scandal, prohibited the media from reporting the testimony of a Quebec ad executive for fear of jeopardizing his chances for a fair trial later on fraud charges.

In all these cases, though, the real casualties were press freedom and the public’s right to know.

Now, another court has ordered a sweeping publication ban, this time in a high-profile case that rocked the nation and made worldwide headlines.

Two weeks ago, Brampton Justice of the Peace Keith Currie issued a ban that prevents the media from reporting on the bail hearings of the 17 people accused of plotting terrorist attacks on Canadian soil, from bombing key buildings in Toronto to beheading the Prime Minister.

Given the serious allegations in this case, Canadians should be allowed to hear why the accused are either set free or kept in jail. The suspects are innocent until proven guilty, so Canadians also should have assurances the courts are treating them fairly.

Unfortunately, Canadians do not have that opportunity. That’s why the Star, along with several other news organizations, is appealing the ban. A judge agreed yesterday to hear formal arguments on the ban in mid-July.

Given the immense national importance of this case, the prohibition should be lifted immediately, both to guard the rights of the accused and safeguard the exercise of free speech in Canada.

Publication bans are routinely granted during bail hearings to protect the right of the accused to a fair trial. Under the Criminal Code, such bans are imposed automatically if an accused requests it. But in this case, the justice of the peace issued a blanket prohibition on reporting evidence from all 17 bail hearings, even though originally lawyers for only one of the accused requested such a ban.

This judgment was unwarranted. Many of the allegations are already out in the open because the police outlined their case at a news conference the day after the mass arrests. And more than 5,000 articles have already appeared around the world on this case. The accusations have been reported so widely that they weaken any argument that publishing evidence from the bail hearings could taint a prospective jury pool. In addition, many defendants did not want the publication ban and are being deprived of their right to a hearing in full public view.

But there’s a larger principle at stake here.

When deciding whether to impose publication bans, courts must weigh the right of the accused to a fair trial against the public’s right to know and freedom of expression. The Supreme Court of Canada said so in 1994 in the landmark Dagenais decision, which held that the two competing interests should be balanced and high standards met for imposing bans.

“Freedom of expression – including freedom of the press – is now recognized as a paramount value in Canadian society,” the court said in its ruling. “Publication bans are not available as protection against remote and speculative dangers,” it added.

While it is not yet clear if the ruling applies to bail hearings, justices of the peace should not ignore the sound principles behind it.

Our justice system is based on openness and transparency. Ordinary Canadians cannot attend court every day, and must rely on the news media to tell them what has happened. And in the age of the Internet and blogs, almost anyone can have access to U.S. websites that can carry the testimony Canadian media are barred from printing or broadcasting.

These are solid reasons why courts should take great care when deciding whether the rights of the accused should trump the public’s right to know what is going on in the courtroom. Obviously, in instances of extraordinary national interest, the bar for issuing publication bans should be set high. But that’s not the case here. This ban was imposed without due consideration of why it was needed in the first place.

Publication bans should not be imposed automatically, but should be issued only after hearing credible evidence on why they are required.

That standard should be adhered to especially in cases where the public has a valid interest in proceedings that are of national importance. Faced with allegations of terrorists plotting in our midst, it is hard to imagine a case where that could be more true.