Publication Bans - Case Study Example

Publication bans A publication ban is a court order that is meant to stop the media group from publishing certaindetails about a case (Jacob 10). The details may offend some parties or groups if published. Some of these groups could be companies, the government or even people who will be hurt if such information is published. There are two types of the publication ban; the statutory ban and the common law ban. The statutory bans are set out in the criminal code of Canada while the common law bans are issued at the discretion of judges. A public ban can be issued if it is necessary in order to prevent a real risk to the fairness of the trial or if the salutary effects of the public ban outweigh the deleterious effects to the free expression of those affected. According to Media Law Resource Center (MLRC) 50 state survey (pp 81) “open court” principle presumes that the public poise in the honesty of the court system and the agreement of ensuring that there is justice is made in openness and in public. The reasons for doing this are to ensure that an effective evidentiary process is maintained. The evidence process is very important when it comes to handling law suits. It is the quantity of the available evidence which determines whether to prosecute the accused or not (Boyd 50). The accused is innocent until proven guilty, and this can only be determined by the amount of evidence that the court has against him. In a free and democratic society the Dagenais/Mentuck rules should not be applied. This is because the public will be excluded from some of the information if the rules are not applied to statutory. The court is there to ensure that there is justice and that culprits are put behind bars. It is the right of the public to know how that justice is provided. According to the Canadian Charter of rights and freedom there should be reasonable limits in relation to what should be published. The court has the right to withhold some information in relation to some law suits so as to protect some parties. It is with great concern to note that all this is done for to benefit the mere citizen (Jacob 20). The representative of the citizen is the government. The government is supposed to ensure that its citizens are up to date on how the country is doing and whether justice is being served. Judges are human beings and can be subject to discrimination and bribery. No one is perfect, and that is why there should be openness when it comes to court rulings and the information is available to the general public. The general public includes the media group. The media groups have their own way of putting across information to the public; they are the people’s eyes and ears (Boyd 72). The media usually act as a medium of communication between the people and the government. They report what is going on because not all people have access to some critical information in the stated country. The media have the right to access the information because they are obliged to do so. There are rules which clearly define the rights and freedom of the citizens in Canada and therefore any information should not be withheld from the citizens. This information can lead to mistrust between the citizens and the government of Canada. According to MLRC 50 state survey (pp 93), the people of Canada may feel that the information is kept from them so that they cannot know the truth about the case or because justice was not served otherwise there would be nothing to hide or keep from the citizens. The Dagenais/Mentick test will only bring unfairness in the country and citizens will not feel like justice is served due to the application of the “reasonable limits” rule. This gives the court the authority to ban the media from publishing some information of a certain law suit. The media are even restricted from getting access to information regarding that case. This test goes against the open court principle that states that the there should be openness in courts when there is a case hearing and that the information should be available to the media. As Sharpe J.A. wrote: “..There is nothing in the law which allows any judge to impose their won opinions about what to be broadcasted to general public (absent a finding of inquiry or harm which is capable of overriding a constitutional guarantee). This would be quite inconsistent with the protection guaranteed by the protection of the legal orders which accords freedom of the press and expression”. In the Stephan Dafour case, the accused had an intellectual disability the media were allowed to air the proceedings of the case and so the open court principle was applied in this case as ruled by Quebec judge (Jacob 17). In the Dagenais v. Canadian Broadcasting Corporation, 1994 is the leading Supreme Court of Canada decision regarding the publication bans and how they are related to the freedom of speech. It was decided that judges have the right to enforce publication bans. This is called common law discretionary. This means that the judge has the right to withhold some information exposed in a criminal case. The judge should however be reasonable when it comes to dealing with the breach of rights and the rights to a just trial. According to MLRC 50 state survey (pp 99), the media group however can decide to appeal this decision in order to be given the right to access this information. According to this case, the proof of whether the four catholic brothers actually abused the young boys in Ontario catholic school where these catholic brothers were teachers there. Though the media has the right publish anything related to the case, they had no right to produce mini-series about sexual abuse scandal. It is not fully right to produce such dramatic mini-series regarding a case that has not even been settled with (Jacob 10). The Catholic Church has many followers if such an accusation is made against its members, there could be friction between its members and the government. The congregation will feel that justice is not being served. It is therefore very important for the media group to be very sensitive with the things that they publish or produce. The media should ensure that they do not violate the citizen’s rights with their publication. There is freedom of expression in Canada, but the human right should come first. The freedom of expression should not be used to violate the human rights (Jacob 20). That is why the media group should wait for the court ruling after which the judge will decide which materials are available for the media to publish. Though in this case, the court ruled that the publication ban was against the freedom of speech, these mini-series would really have hurt the Catholic Church members (Boyd 60). This is not what the law is all about; it is about protecting its people and ensuring that justice is served. In the Toronto star newspapers ltd v. Canada 2010, this company was challenging the mandatory publication rule. This is the rule where the accused has the right to decide whether his case or some of the information related to his case will be given to the media or not. An example is whether information on why the accused has been released prior to his hearing or trial, should be given to the press or not. In this case, the accused should not have the right to decide that. Toronto star newspapers ltd saw this ban as being ridiculous (Boyd 100). It is only fair for the public to know what is going on with the case proceedings. No information should therefore be kept from the media because this means that the general public is also kept in the dark. Unless the circumstances are life and death, the information cannot be harmful to the public if released. The accused however has no right to protect himself from embarrassment because he had already embarrassed himself from the word go when he committed the crime. This case called for the bail rights and rules to be revised. The accused cannot deny the media from publishing his release information. According to the MLRC 50 state survey (pp 110), the open court principle should therefore be used, and this means that all the information regarding the accused should be given to the press so as to inform the general public about the proceedings of the case. A fair trial should also be seen in the eyes of the public. This is why the “reasonable limit” rule should not apply here. This is the only way for the general public to know whether justice is being served or not. The media being the public’s eyes and ears have the obligation to inform the public of each and everything that is going on in the courts (Jacob 30). This includes giving them all the information they have about the cases and how the accused are being convicted. It is not fair for the public to see a suspected serial killer roaming around and still be denied the information of his release. The general public cannot be happy with such an act. That is why they demand the application of an open court principle to apply at all times without the “reasonable limit”. In the Toronto star newspapers ltd v. Canada the seventeen people who were charged with terrorism related offences were later released on bail (Jacob 40). This information should not be kept from the public because this people could be a danger to the public since the people have the right to know the whereabouts of criminals so that they can protect themselves from these terrorists. The impact of the ban of the value of the police operations, the right of the general public to freedom of speech and the right of the accused to a just and fair trial must be considered. A publication ban according to operational methods is therefore not of much importance (Neil 43). Even though the officers’ work will be conciliated if the accused find out that they are the targets, press publication will not amplify this. Publication of this will not harm the work of the officers in any way. Publication ban to protect the identity of sufferers and the witness is recognized in the common law. The judge may decide to issue a publication ban in order to protect their lives and also to enable them continue with their normal life after the trial (Neil 47). This ban enables them to lead a normal life in that the community does not consider them as victims but as their neighbor. Work Cited Boyd, Neil. Canadian Law: An Introduction. Cengage Learning, 2010. Print. Pg 1-100 Jacob, Joseph. Canadian Charter of Rights and Freedoms: Democracy for the People and for Each Person. Trafford Publishing, 2007. Print, pg 1-52 Media Law Resource Center. MLRC 50-state survey: Media privacy and related law. Media Law Resource Center, 2008, Print, pg 81-182 Read More