Telling the truth about the undefamable / Restoring reputations to the defamed: It can be done only with names.
The effectiveness of publication bans in the Internet age can be gauged by a rough rule of thumb: the bigger the case, the more useless the ban. A ban on testimony at the Gomery inquiry into the sponsorship scandal had barely been issued last week before it was massively breached on the weekend by U.S. bloggers whose websites are easily accessible to Canadians.
It was a familiar replay of leaks from Robert Pickton's preliminary hearing on 13 murder charges in Vancouver; extradition proceedings for an Israeli man Daniel Weiz, charged with killing Toronto teenager Dimitri (Matti) Baranovski; court sessions involving those accused in the Air-India bombings; and Karla Homolka's 1993 manslaughter trial.
While hundreds of publication bans are imposed each year without a word being reported, cases that attract international attention usually cannot be kept under wraps.
"What we are seeing in these cases is a one-two punch: the availability of information, and the will to seek it out," said Jim Rossiter, a Halifax media lawyer.
"In a case like this, it is crucial to the public interest for that information to be out there," argued media lawyer Lorne Honickman. "Unlike a regular trial, a public inquiry involves the highest peak of public interest."
Publication bans are generally imposed to safeguard the right to a fair trial. They can be strictly enforced within Canadian borders, but this becomes almost impossible when the source of the information is abroad.
In the Pickton case, Seattle television and newspaper websites ran accounts despite a publication ban. And at Karla Homolka's 1993 trial for the slayings of two Ontario teenagers, The Washington Post and some Buffalo media breached the ban. Although the U.S. media were ultimately barred from the courtroom, at least one U.S.-based website continued to publish case details.
The efficacy of publication bans is a topic of great debate. Most media argue that, besides being outdated and difficult to enforce, they are also unnecessary. Even some defence lawyers have lost faith in them.
"There are times when such a ban is clearly warranted, especially to withhold specific facts or images from the public - the Bernardo case comes to mind," criminal lawyer Robert Rotenberg said. "But as a general rule, instead of running from technology, the courts system should learn to live with it, and embrace it.
Mr. Honickman said there is no evidence that media reports influence potential jurors. "The idea of a tainted jury pool is fiction," he said.
He said that many enlightened judges have taken heed of this fact, permitting pre-trial publicity subject to a "sunset clause" that shuts down publication a few weeks before a jury is to be picked.
The fact that lawyers can closely question potential jurors about their knowledge of a case has also helped negate the effect of pre-trial publicity, Mr. Honickman said.
However, Mr. Rossiter said that bans may do some good. "How much good? More than if one hadn't been issued at all," he said. "My opinion is that fewer people will be aware than would be without a ban."
Publication bans are worse than useless in the Internet age. They not only prevent Canadians from following public inquiries or trials; they also create a hierarchy where some citizens are in the know and others are not.
Last week, Justice John Gomery put a temporary ban on reporting testimony from three key witnesses in the sponsorship inquiry: Jean Brault, Paul Coffin and Charles Guite. The ban was intended to prevent the three men's testimony from influencing potential jurors in their upcoming criminal trials. But the effect of the ban has been to take the discussion of the sponsorship inquiry out of the mainstream media and push it onto the Internet. The Internet is covered by the publication ban, too -- at least, pages that originate in Canada are. But word spread quickly on the weekend that information about the testimony was available on at least one U.S. website.
A publication ban has become the equivalent of a brown paper wrapper: it marks the information as naughty, but does not put it beyond reach. The whispers and hints are likely to send people looking for the information, thus negating the intended effect of the ban.
The Citizen has argued that the ban at the Gomery inquiry is wrong because it prevents the public from learning, in a timely fashion, how deep the rot went in the government's sponsorship program. For the public at large, that's still true. But this week, many Canadians already know, or think they know, the content of last week's testimony: politicians, journalists, gossips -- anyone with access to the Internet and a little patience.
Some reporters and the few members of the public who watch the proceedings in person know exactly what Jean Brault said last week. Stopping the spread of word-of-mouth gossip is hard enough. Stopping the spread of a juicy story on the Internet is impossible. U.S. news sources have not felt any compulsion to follow the rules imposed by Canadian courts in the cases of Paul Bernardo and Karla Homolka, or of Robert Pickton. Now, in the age of blogs, there is an even greater risk the information will leak out.
Canada and the U.S. share information but have different traditions about limiting freedom of expression. Courts and governments must recognize that their jurisdiction is limited, although information is not. Indeed, a man who now lives in Ontario is suing the Washington Post for libel over stories it published in 1997, arguing that Ontario readers can access the Post's online archive.
It is almost impossible to control the spread of information in 2005. Even in repressive regimes such as China, North Korea or Iran, the Internet spreads out beyond the clutches of the state. In a free country, where all residents have instant and unfettered access to international sources of information, bans are quickly becoming futile.
Judge Gomery's publication ban has left Canadians with a choice: They can seek out information about their own government from U.S. sources --or they can sit back in ignorance and watch the members of Parliament decide whether to force an election over testimony that citizens aren't even supposed to know about.