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Canadian high court upholds bail hearing publication ban

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  1. Prior Restraint
The Supreme Court of Canada has upheld a federal law that prevents journalists from reporting on evidence presented at bail…

The Supreme Court of Canada has upheld a federal law that prevents journalists from reporting on evidence presented at bail hearings.

In an 8-1 decision issued on June 10, 2010, the court rejected a constitutional challenge brought by multiple media organizations, including U.S.-based The Associated Press, to a section of the Canadian Criminal Code that states a judge must order a publication ban for a bail hearing if a defendant requests it.

The court reasoned that prohibiting reporting on bail hearings was a "reasonable compromise" that preserved a defendant’s right to prepare for trial while still allowing journalists to cover other proceedings, including the actual trial.

“We were disappointed in this opinion,” said Dave Tomlin, associate general counsel for the AP. “The court came down much too heavily on the side of a fair trial without making concessions to freedom of expression, when they could have found a resolution that didn’t compromise freedom of expression.”

The media’s challenge arose out of a case where a publication ban was imposed at the bail hearings of 18 people accused of terrorist activity. Evidence is typically heard by the court for the first time at a bail hearing and is therefore provides the first tidbits of information the public often hears about a high-profile crime.

Though the court acknowledged in its opinion that a publication ban limited freedom of expression and full public access to and scrutiny of the justice system, it said allowing the media to report on bail hearings could interfere with a defendant’s right to a fair trial. A hearing on whether or not a publication ban should be imposed would slow the judicial process and place additional burdens on the defendant, the court said.

“The deleterious effects of the limits on the publication of information are outweighed by the need to ensure certainty and timeliness, to conserve resources, and to avert the disclosure of untested prejudicial information,” the court said. "Accused should be devoting their resources and energy to obtaining their release, not to deciding whether to compromise liberty in order to avoid having evidence aired outside the courtroom."

The court pointed out that reporters can still publish the identity of the defendant, the crime for which the defendant has been charged and the outcome of the application for bail. They can also still attend the bail hearings and the publication ban ends when the defendant is either released after a preliminary inquiry or at the end of the trial.

“It’s always more efficient to steamroll rights,” Tomlin said, “but judicial efficiency is not the value that is supposed to be maximized.”