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By Eugene McCarthy
One of the problems with going on a sabbatical is that it stimulates your thinking processes. And if your sabbatical was at law school, as mine was last year, you begin to think like a lawyer, questioning the law and the people who administer it.
Long before I went to law school, however, I was suspicious, as I'm sure are many of my fellow journalists who've covered courts for any length of time, whenever orders were made banning publication of trials or evidence for one reason or another.
I'm not referring to the standard ban on publication requested by the defence at a preliminary hearing. Rather, I'm concerned with such orders in actual trials. Granted, most can be explained away under the general heading of prevention of embarrassment to the victim, since most orders are generated by sexual cases. The discretion is there in the Criminal Code to protect the names of such victims to assure them that they won't be identified, or that their evidence won't be published if the judge says it won't be.
My beef is with judges who go further than the Code says they can, and with Crown Attorneys who feel it's in the "public interest" to ask that a court be closed just because some nasty details are likely to be aired.
ALL EVIDENCE BANNED
A man, charged with his second offence in less than a year of a particularly brutal indecent assault against a woman, pleads guilty to the charge. Before the Crown reads into the record a summary of the evidence prepared by police, the presiding judge orders a ban on publication of the identity of the victim and on all the evidence.
The Code (s.442.3) allows the judge to ban publication of the "identity of the complainant and her evidence taken in the proceedings." (Emphasis mine.)That leads me to believe parliament in its wisdom (a phrase heard ad nauseam in the courts) didn't intend a publication ban on summaries of the evidence read into the court record by the Crown. The law refers only to what is called in legal jargon "viva voce" evidence — where the victim testifies in person.
When I requested the learned judge after court and suggested (with all due respect) that he might have been exceeding his jurisdiction, he replied: "Well, if you don't like my order, you know what you can do about it."
I replied that I didn't think my newspaper would want to pay to defend a deliberately-incurred contempt of court citation. For my own edification, I consulted two judges in a higher court who've had a great deal more criminal law experience that the judge who made the order. Both felt I was correct in my interpretation of the Code.
That's small comfort when you consider there's really no way you can vindicate yourself unless you defy a judicial order and risk contempt proceedings.
A judge, in somewhat unusual circumstances, insisted the trial of a couple of fraud sharpies from the U.S. who'd stung a lot of local merchants for cash and goods proceed. The pair agreed on a preliminary hearing. No ban on publication was requested by the defence lawyer. Halfway through the hearing, the judge observed me taking notes and interrupted the defence lawyer, wondering whether he wanted a ban on publication of the evidence. The lawyer said, in so many words, that he couldn't care less. The judge then ordered the evidence not be published.
I tugged on the Crown Attorney's coat-tails and asked him to point out (with all due respect) to His Honour that the Criminal Code (467.1) says: "Prior to the commencement of the taking of evidence in a preliminary inquiry ..."That doesn't mean, to my way of thinking, that an order like that can be made halfway through a hearing. The Crown sympathized with my argument and so informed the judge. Replied Hizzoner: "Well, that may well be but I think judges have some prerogatives and the order will stand." Judge 1, media 0.
MEDIA NOT PRIVILEGED
You'll notice that in the last case, I had to ask the Crown to present my argument. Members of the media have no special privileges about speaking in court (unless you happen to be charged or sued and become a party to the action).
Every day one judge or another is decrying the rise in crime and stressing the need for general deterrence. Let's face it, if we the media didn't publicize the sentences and penalties judges hand out for "general deterrence," few people would get the word.
The courts depend on us yet are often too quick to close the courtroom doors or restrict publication of evidence if there's the slightest hint of nastiness which usually is spelled S.E.X.
I recall a case in which a local land developer, a fairly prominent member of the community, was able to get his trial in private after he pleaded guilty to taking some questionable photos of young girls. It wasn't because the developer was prominent that the court was closed. It was because of the young girls giving evidence. But couldn't that leave a member of the public somewhat suspicious?
And what of the case of several Boy Scout leaders caught doing nasty things to the young boys in their charge? Again, a closed court — for the sake of the children not for the sake of the accused. But isn't it strange that the guilty parties don't have to suffer any embarrassment?
ALBERTA COURT RULING
A lot of Crown Attorneys (and defence lawyers) apparently think that whenever there's a hint of sex involved, the court should be closed. An Alberta appeal court in 1978 noted, however: "The mere fact that the charges are of sexual offences is not sufficient to justify an order excluding the public.
"The discretion to exclude the public must be exercised cautiously and only as circumstances demand," the Alberta court ruled.
I've run into the arguement time and again from Crowns and defence counsel that if a decision is made to close the court, we as journalists should go along unquestioningly "because you don't want to print that stuff, anyway."
I don't know of one publication which uses names of sex victims (unless they happen to be dead and that's what the trial's all about). Journalists ought to be able to attend almost every court sitting.
There are enough rules governing us when it comes to the protection of victims of crime. We don't need knee-jerk decisions of court personnel who want to go beyond these rules.
McCarthy is legal affairs and courts writer for the
Record. Two years ago he attended the University of
Western Ontario law and journalism seminar. He was a 1979-80 recipient
of a St. Laurent Fellowship in Legal Journalism at Queen's University
Law School in Kingston, Ont.
Published in Sources Winter 1980/81