We’re not supposed to know
A series of ludicrous events took place in an Ontario courtroom last Friday. They involved on-again, off-again decisions by a judge of the Ontario Court of Appeal concerning a publication ban on evidence against a First Nations activist.
What transpired last week is the result of the all-too common practice of denying the media the right to publish evidence presented at criminal trials in open court.
My concern is not about the merit of the charges against Shawn Brant, or the allegation that the Commissioner of the Ontario Provincial Police made threatening comments in wiretapped phone conversations with the accused.
Nor am I concerned with the rationale of Madam Justice Gloria Epstein who last Friday, July 18, 2008, first lifted a ban that had been imposed on publication of the testimony, then re-imposed the ban, but later reversed herself to once again permit publication of the evidence.
My concern is with the whole issue of publication bans on court testimony.
The courts must be open to public scrutiny at all times. Every person accused of a crime has the constitutional right to face his or her accuser in open court — to know what the charge is, who has laid it, and to hear the evidence and challenge the veracity of the accuser.
Nominally, the courts are open in Canada. If you’ve the time and inclination you can sit in on any trial. Because that’s impractical for most of us, we’ve delegated our right to attend to the news media. This is why freedom of the press is so important — not just for the press, but for us.
Without the protection of a free press, we are liable to middle-of-the-night arrests, secret charges, secret trials, and all the trappings of a totalitarian state.
Publication bans erode our protection from injustice because they prevent questionable evidence from being exposed to the timely searchlight of public examination.
In the case of Shawn Brant, he says: “This publication ban was never to protect me, it was always to suppress evidence.”
(The wiretapped phone conversations — conducted without a court order — had Julian Fantino, the Commissioner of the OPP, telling Mr. Brant that failure to remove a blockade on Highway 401 could lead to “grave consequences,” “death,” and that he — Mr. Fantino – would do everything he could to “destroy” his reputation.)
(Mr. Brant’s lawyer, Peter Rosenthal, wants Mr. Fantino suspended and an investigation held. He argues that the Commissioner’s intervention contradicted OPP guidelines on dealing with aboriginal protests. The guidelines were established after George Dudley, a native, was shot and killed by an OPP officer at Ipperwash Provincial Park in 1995.)
The publication ban was lifted by Madam Justice Epstein in response to an application by the CBC. A few hours later, on request of Crown lawyers, she granted a temporary reinstatement. In a two-page handwritten decision, she noted that if the news media are allowed to publish evidence the Crown wishes to protect, “the genie will be out of the bottle.”
And indeed tghe genie was out of the bottle. The CBC began broadcasting details of the wiretapped conversations and the Internet spread the story globally.
The process left defence lawyers and the CBC fuming. So back they went to Madame Justice Epstein, pointing out that the genie was by now all grown up and scampering about. She then re-reversed herself and quashed her earlier order reinstating the ban.
Under Canadian law, judges must grant a publication ban on evidence at bail hearings or preliminary hearings if the accused requests one. The idea — one I do not agree with — is that publicity could damage the reputation of an individual who has not yet been committed to trial.
As well, the Young Offenders Act prohibits media identification of anyone under 18 charged with a crime, along with witnesses and victims (unless the victim has died). There may be some slight justification in these cases.
Finally, under Canada’s new terrorism legislation, just about anything goes in keeping secret, even from the defence, the detail and nature of charges when the Crown wishes to do so.
It’s all wrong.
Time and again, we see court bans used to protect police and prosecutors from timely public examination of their actions. Unless the media are free to report everything that goes on in a courtroom, we the people are denied our right to monitor the integrity of the justice systrem. The way it is now, we’re just not supposed to know.
