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Publication bans

Murder case ban stifles free press, critics say
Judge's ruling prevents reporting of major development

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.


Killer hides behind kids

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

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.