Several media organizations, including The Associated Press, lost an appeal on Monday to lift a news blackout on a prominent terrorism case in Canada, but lawyers for the media said the court ruling is a partial victory for journalists reporting on preliminary court hearings.
The appeal relates to the arrests in 2006 of the "Toronto 18," a group prosecutors accuse of planning to truck-bomb nuclear power plants and a building housing Canada's spy service. The case made headlines and heightened fears in Canada, where many people believed they are relatively immune from terrorist strikes.
One man has since been found guilty. Seven of those arrested have had their charges either withdrawn or stayed, but a judge imposed in 2006 a restriction on ongoing bail hearings that forbids journalists from explaining why. The trials of 10 adults, including the alleged ringleaders, have yet to begin.
Reporters may attend hearings, but they cannot report on them. Canada's criminal code allows judges to bar the publication of details of bail hearings if the accused requests a ban.
Lawyers for The Associated Press, the Canadian Broadcasting Corp., CTV television and the Toronto Star appealed the blackout before Ontario's Court of Appeal in March.
They argued the media are surrogates for the public in the courtroom and have an obligation to report on the allegations facing the suspects. Paul Schabas, one of the lawyers representing all four media outlets, told the panel of five judges in March that the public should be allowed to hear why the suspects were released.
Protecting fair trials
But in the 3-2 majority decision released Monday Ontario Court of Appeal Justice Kathryn Feldman wrote that an accused person can be granted a publication ban in a preliminary hearing if there is any possibility the case will go to a jury.
Feldman, writing for the majority, ruled the limit on freedom of expression is justified to prevent the potential breach of fair trial rights. The ruling, however, does say that automatic publication bans are not justified if a case is going to be tried by a judge alone. It's up to an accused person whether to have a jury or judge trial.
Schabas said he expects the case to reach the Supreme Court of Canada.
Most of the lawyers for the suspects want the ban to remain. Some said news coverage could bias potential jurors. Others said challenging a publication ban would be an unfair burden for suspects while they are trying to win their release.
Schabas said Monday that because the remaining suspects are still facing potential jury trials the publication bans will remain in place, but he said the ruling is a "major step" in leading to openness and public scrutiny of bail hearings in Canada. He said the two dissenting judges agreed with the media's position.
Schabas said the division in the court demonstrates that these types of cases must be more open. The media and the government can appeal although no decision has been reached.
'Cloak of silence'
"The two judges in dissent acknowledge that while there may be some risk to tainting jurors, it's too speculative and it doesn't outweigh the importance of the public's right to know and right to see what happens in bail hearings," Schabas said. "Until now it's really been under a complete cloak of silence."
Schabas said there is also a case in Alberta that challenges the same section of Canada's law on bail hearings and that Canada's Supreme Court will decide whether or not to hear the case on Thursday.
Fred Kozak, the media lawyer in that case, said Monday's ruling will give the Supreme Court more reason to hear the case. He also called it a partial victory and stepping stone to having the issue decided by the Supreme Court.
"Part of the law was struck down. Where an accused is going to face a trial by judge alone there can be no justification for a publication ban," Kozak said.
Iris Fischer, who also represents the four media outlets, called Monday's ruling a partial victory, too, but acknowledged that most cases are tried by a jury.
"If there is even a possibility of a jury trial at that early stage than it's covered by that mandatory ban," Fischer said.
If it becomes clear later that a case will be tried by a judge then the publication ban no longer applies, Fischer said.