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Publication
bans
- Murder case ban stifles
free press, critics say
- Judge's ruling prevents
reporting of major development
Jake Rupert, The Ottawa
Citizen, August 11, 2004
There has been a major development in an Ottawa Valley homicide
case, but what is thought to be an unprecedented publication
ban, granted without the media being notified, bars the Citizen
from reporting what happened.
The situation has left open-court advocates questioning what
they view as an infringement on freedom of the press and the
public's right to know.
"Ultimately, the law belongs to the public, and the courts
belong to the public," said Ottawa University law professor
David Paciocco.
"The public is entitled
to know what goes on in courts.
"The open-court principle is essential to protect freedom
of expression and freedom of the press, which are essential to
democracy."
Ontario Superior Court Justice Michael Quigley will be trying
to contact the lawyers involved, in order to get them back to
court to lift the ban he ordered last week in the case of Brian
Crogie, 57.
Mr. Crogie was charged in February 2002 with first-degree murder
in the shooting death of his girlfriend of 12 years, Glenda LaSalle.
Ms. LaSalle's body had been discovered in the couple's Barry's
Bay apartment.
Mr. Crogie has been in jail ever since.
Last week, a pre-trial conference between the judge, Mr. Crogie's
defence lawyer, Michael Crystal, and Renfrew County Crown attorney
Peter Barnes was held in Ottawa. Such conferences are held to
plan administrative details of trials and discuss legal issues
that could come up in the course of the trial.
Before the conference, Mr. Barnes told a Citizen reporter nothing
important was expected to happen. However, after meeting in chambers,
counsel and the judge returned to court where the judge announced
the publication ban on the proceedings that followed.
Despite the Supreme Court of Canada's directive that the media
should be given notice of publication ban applications prior
to going to court so arguments against them can be prepared,
nobody in the media was contacted.
Mr. Paciocco and Paul Schabas, a Toronto media lawyer, said in
the circumstances of Mr. Crogie's case, they have never heard
of a publication ban such as this being sought or granted.
"I'm not aware of another," Mr. Schabas said. "Bans
under our law are unusual and should only be granted when there's
a need to override the public's right to know. Reasons of convenience
to the parties is not a basis under our law to justify a ban.
This kind of ban, I can't understand.
"It's disappointing that nobody gave notice to the media,
because the Supreme Court says, where possible, the media should
be given notice in advance so it can attend and argue against
the ban and in favour of the public's right to know."
Despite the high court's direction, publication bans continue
to be sought and granted in Eastern Ontario without the media
being notified. Mr. Schabas says in Toronto, the media are notified
of publication ban applications on a regular basis.
At the centre of the issue is freedom of the press, which is
guaranteed by Canada's Charter of Rights. This freedom is recognized
under our law because members of the public rely on journalists
to report on the actions of public institutions.
Based on the information received
from the media on the performance of these institutions -- government
and courts among others -- citizens make choices at the voting
booth.
It is this democratic role the press plays that is enshrined
in the Constitution, a guarantee that appears to have been infringed
in this case, Mr. Paciocco said.
"If the public doesn't know what's happening, it can't cause
change, and there can be no confidence in the judicial branch
if they can act in secret," he said.
Eastern Ontario regional senior Superior Court Justice Monique
Metivier contacted Judge Quigley yesterday.
"Judge Quigley intends to reconsider the ban very shortly,"
Judge Metivier said.
As it stands now, the ban is in place until mid-October, when
Mr. Crogie will next appear in Pembroke court.
Until then, or until the ban is lifted, neither the Citizen,
nor any other media can report on the substance of what happened
in the murder case.
© The Ottawa Citizen 2004
Killer
hides behind kids
By Michele Mandel, Toronto
Sun, April 18, 2004
He killed his wife in cold
blood, setting their house on fire while she soaked in the bathtub,
so he could collect on the insurance and live happily ever after
with his mistress.
We'd love to tell you his name
-- but we are not allowed.
The mother of his three young
children died a horrible death by smoke inhalation because he
poured gasoline along all her escape routes that morning, blocking
every path to a door with flames. We think her name should be
known.
We can't tell you that, either.
By order of the court, her
killer may be the only adult convicted murderer in Canada who
is allowed to keep his identity secret. He could conceivably
be released from prison one day -- he was sentenced to life in
prison and the faint hope clause could see him free in less than
15 years -- with no one knowing he was a killer.
A publication ban on his family
surname was first imposed during his trial and extended after
his conviction last May to protect the couple's three young children.
"I think it's bad law,
with all due respect to the judge who ordered it," argues
Marc-Andre Blanchard, president of Ad Idem, Advocates in Defence
of Expression in the Media. "I think it's unacceptable."
Under the relatively new Section
486(4.1) of the Criminal Code, judges have the discretion to
order that "the identity of a victim or witness or any information
that could disclose their identity shall not be published."
Precedent-setting
A further application was made
to the court in connection with the publication ban and an order
was issued but under its terms, we're not allowed to tell you
what the decision was nor the reasons for it.
Philosopher Jeremy Bentham
said "publicity is the very soul of justice."
It seems to be in short supply
here. And this precedent-setting ruling could mean that the names
of more murderers could soon be protected as well. Criminal cases
involving couples with children are commonplace. Will all crimes
involving domestic violence now be cloaked in anonymity?
If there is a killer whose
name should be known and reviled it is the man we will call Charles.
The 38-year-old, convicted last year of the first-degree murder
of his wife and the arson of their Ontario home, plotted the
killing with cool dispassion.
In the weeks before the fire,
Charles moved his prized 1984 Mustang out of their garage and
into a storage locker. He also took some tools and other belongings
to the locker and brought some of his clothes to his mistress'
home.
On Jan. 9, 2001, his wife dropped
their children off at school and returned home to take a bath.
Two neighbours saw Charles back his truck up to the couple's
house just before the fire. Twenty minutes later, thick black
smoke was seen billowing from the front door.
Escape blocked
Firefighters found his wife's
naked body in the master bedroom covered only by a towel. She
had died of carbon monoxide poisoning. Gasoline had been poured
from the living room, along the hallway and downstairs to the
front door, blocking her only two avenues of escape.
Charles was an electrician
with DaimlerChrysler who had just been laid off. Heavily in debt,
he had increased the life insurance on his wife to the maximum
$50,000.
"I knew they weren't getting
along too good," her father told a newspaper after his son-in-law's
conviction. "I did tell her once, 'If you want to leave,
we'll find a place for you to stay with the children.' "
The quiet, easy-going mother
would never complain.
But it is as if she never existed.
We are not allowed to know her name or that of her killer.
"The big loser is the
transparency of the system," says Blanchard. "The transparency
of the justice system is there for reasons that are in the public
interest. And in this instance, the public interest of knowing
who is the murderer and in certain circumstances, who is the
victim," is paramount.
What is truly outrageous is
that this killer has been able to hide his identity -- and even
that of his dead wife -- behind a sudden concern for his children.
Though we would argue that
if he really cared about protecting those poor kids, he shouldn't
have murdered their mom.
Publication bans: What
the media can't say
By John Bowman and Justin
Thompson, CBC News Online | July 2001 Updated Dec. 2, 2002
Under the law, judges must
grant a publication ban on evidence presented at bail hearings
and preliminary inquiries if the accused asks for one. During
the trial, anything that is said or presented in court while
the jury is away cannot be reported. Only after the trial can
the press reveal "what the jury didn't see."
PUBLICATION BAN
During a trial, anything that
is said or presented in court while the jury is away cannot be
reported. Only after the trial can the press reveal "what
the jury didn't see."
By law, judges must grant a
publication ban on evidence presented at bail hearings and preliminary
inquiries if requested to do so.
In general, publication bans
exist to:
Ensure a fair trial for a person accused of a crime.
Ensure transparency of proceedings so Canadians know that crimes
are prosecuted, and punished if proven.
Ensure privacy of people who may be affected by the information
divulged in court.
In the Paul Bernardo trial,
the judge imposed a partial publication ban and prohibited journalists
and the public from viewing videotapes presented in court. These
bans are often imposed in the name of public decency and out
of respect for the families of the victims.
News organizations will sometimes
fight the publication bans, as they did in the Bernardo case,
claiming that they violate freedom of expression guaranteed under
the Constitution.
But not all publication bans
are imposed to protect citizens. In two separate murder cases,
in Manitoba and B.C., judges have prohibited publication of the
details of police stings. The judges in those cases ruled that
future police operations could be jeopardized if the details
of how they work are made public.
PRELIMINARY HEARING
In serious criminal cases,
a preliminary hearing is held to ensure that sufficient evidence
exists to justify a full trial. All preliminary inquiries are
held before provincial courts.
Among other things, the preliminary
hearing is a chance for the Crown prosecutor to present witnesses
whose testimony may persuade the judge there is enough evidence
to go to trial.
The preliminary hearing is
not meant to establish guilt or innocence. It is an opportunity
for the judge to evaluate the case before choosing to proceed
with or drop the charges. The judge may also decide to upgrade
or downgrade the charges.
If, after attending the preliminary
hearing, the accused decides the Crown has enough evidence, he
or she may elect to enter a guilty plea, thus eliminating the
need for a full trial.
The Winnipeg Free Press
,Brandon Sun and Vancouver Sun challenged the
publication bans and the case is now before the Supreme Court
of Canada.
A controversial publication
ban in Britain was imposed for another reason: to protect the
killers of two-year-old James Bulger from vigilante justice.
Robert Thompson and Jon Venables, who were 10 years old when
they beat the toddler to death in 1993, were given new identities
when they were released in June 2002.
The judge imposed a permanent
publication ban on any details about their new identities or
where they will be relocated. He said that the press's continued
interest in the case left the two vulnerable to harassment and
violence.
In July, the publication ban
was eased slightly to protect Internet service providers from
prosecution if information violating the ban appears on one of
their customers' Web sites.
In Ontario, the names of an
Aylmer couple whose children were removed by the Children's Aid
Society have not appeared in the press. Neither have the names
of a couple from Oshawa, Ont., who were accused of confining
their two teenage sons in makeshift cages. Publication bans in
both cases have prevented writers and broadcasters from revealing
their identities.
Publication bans are often
imposed when children are involved, to protect them from harmful
publicity. In Ontario, it is illegal to reveal the names of children
involved in hearings regarding their custody. In fact, publishing
any information that would identify them, including their parents'
names, their ages or sometimes even the school they attend, is
banned.
Federal laws, including the
Young Offenders Act, prohibit identifying in the press anyone
under the age of 18 who is involved in a criminal proceeding.
This includes the accused, witnesses and victims, unless the
victims have died.
The Internet is becoming a
challenge for those trying to enforce publication bans. Paul
Bryan of Burnaby, B.C., was charged for posting results of last
November's federal election on his Web site.
Under the Canada Elections
Act, it is illegal to publish election results from parts of
the country where polls have closed in parts of the country where
polls are still open. The law is in place so that results from
the East will not influence voters from the West.
But Bryan believes that the
law infringes on his freedom of expression and, with the advent
of the Internet and satellite television, is unenforceable besides.
He is challenging the law under the Charter of Rights and Freedoms.
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
