The Rants of Issachar
Thursday, May 26, 2005
On publication bans...
Is it just me or are publication bans more popular with Canadian judges these days?
As I understand it, there are exactly three justifications for imposing publication bans on judicial proceedings.
I have few complaints with the first case although I don't agree that it should be automatic or even frequent. I don't believe it's in the best interest of a young offender or society that all crime by young people is anonymous. (And it's not anonymous to the offender's peers who are the relevant audience).
The second justification is used in cases like the Bernardo murders. We have to be careful with it that we don't make trials unfair, but so far I'd say we're doing okay on that.
The third justification is getting abused. First it's based on the assumption that if a ban is not implemented than it will be impossible to find people who have not been implemented by the publication. (Because we're all that well informed). It also assumes that jurors are incapable of basing their decisions on the evidence presented at trial as when they're able to read second hand reports of what they themselves heard at the trial. Makes total sense.
A publication ban removes all the actual facts from discussion of a crime. All that's left is the inuendo. This is not good.
But...
The most recent publication ban has no justification as far as I can tell. (Mirrored here) The trial is over. There is no jury to be contaminated. What possible justification can there be for not allowing full reporting of the court proceedings? Public reporting is essential for the integrity of our court system. What is going on? With the international and anonymous nature of the internet. Enforcing these bans ultimately requires that everyone but the lawyers be excluded from the court. A ban violation simply can't be prosecuted if you let others into the court room because anyone hearing the information in the court can simply post anonymously on some blog somewhere. From there non-Canadian sources can continue to report the information and it can be read online by Canadians. So if we want publication bans, we ultimately have to close the courtrooms. Secret evidence, secret arguments...
This is bad...
As I understand it, there are exactly three justifications for imposing publication bans on judicial proceedings.
- Protecting the identity of a minor whether the minor is the offender or a victim of crime.
- Protecting the victim of a crime from being further victimized by the trial.
- Protecting the right of the accused to a fair trial. The assumption being that publication of the accusations could make finding an impartial jury impossible.
- Protecting sensitive sources in cases against terrorists.
I have few complaints with the first case although I don't agree that it should be automatic or even frequent. I don't believe it's in the best interest of a young offender or society that all crime by young people is anonymous. (And it's not anonymous to the offender's peers who are the relevant audience).
The second justification is used in cases like the Bernardo murders. We have to be careful with it that we don't make trials unfair, but so far I'd say we're doing okay on that.
The third justification is getting abused. First it's based on the assumption that if a ban is not implemented than it will be impossible to find people who have not been implemented by the publication. (Because we're all that well informed). It also assumes that jurors are incapable of basing their decisions on the evidence presented at trial as when they're able to read second hand reports of what they themselves heard at the trial. Makes total sense.
A publication ban removes all the actual facts from discussion of a crime. All that's left is the inuendo. This is not good.
But...
The most recent publication ban has no justification as far as I can tell. (Mirrored here) The trial is over. There is no jury to be contaminated. What possible justification can there be for not allowing full reporting of the court proceedings? Public reporting is essential for the integrity of our court system. What is going on? With the international and anonymous nature of the internet. Enforcing these bans ultimately requires that everyone but the lawyers be excluded from the court. A ban violation simply can't be prosecuted if you let others into the court room because anyone hearing the information in the court can simply post anonymously on some blog somewhere. From there non-Canadian sources can continue to report the information and it can be read online by Canadians. So if we want publication bans, we ultimately have to close the courtrooms. Secret evidence, secret arguments...
This is bad...
