Freedom of expression, publication bans and the media.

• Date: 01 September 2016
• Author: McKay-Panos, Linda

The issue of publication bans in the context of criminal matters ordered by the courts became more complex with the advent of the Internet. Some may remember when the criminal proceedings of Karla Homolka were subject to a publication ban. There were several alleged breaches of the ban when the close proximity to the United States and the inability for an Ontario court order to apply to the United States, coupled with public access to the Internet, effectively nullified the court's order. In addition, in 2005, author Stephen Williams was sentenced for violating a publication ban by including details of the criminal activities of Homolka and Paul Bernardo in two books (Nick Pron and Robert Benzie, "Bernardo Author called 'a criminal' Stephen Williams guilty of breaking publication ban" Toronto Star (15 January 2005) online: http://www.thefreeradical.ca/moviesBernardo/articlesOnStephenWilliams.html).

A publication ban is a court order that prohibits the public or the media from circulating certain details of a judicial procedure that is normally public. Often publication bans are issued when a victim or witness may be somehow hindered by having their identity openly broadcast in the media. Sometimes there is a concern that the publicity may affect the outcome of the case or violate the accused's right to a fair trial. Publication bans can be ordered because they are required by statute (e.g., the Criminal Code) or they may be ordered when a judge has the discretion to ensure an accused person's right to a fair trial needs to be protected by a publication ban.

Because freedom of expression is enshrined in the Canadian Charter of Rights and Freedoms ("Charter") section 2(b), any limits on this right must be defended by the government under Charter s 1 as being reasonable and justifiable in a free and democratic society. At the same time, the public's right to know about judicial proceedings may also have to be weighed against the accused's Charter right to a fair trial.

The leading case involving publication bans is Dagenais v Canadian Broadcasting Corp, [1994] 3 SCR 835 ("Dagenais"). Four former and current members of a Catholic religious order were charged with physical and sexual abuse of young boys in their care at Ontario training schools. The accused applied to court for an injunction stopping the CBC from airing and publicizing The Boys of St-Vincent, which was a mini-series depicting a fictional account of sexual and physical abuse of children in a Catholic institution in Newfoundland. The lower court granted the injunction, prohibiting the broadcast of the mini-series anywhere in Canada until the end of the four trials. The Court of...