Report detailing rise in pub bans in courts ‘troubling’: lawyer
A newspaper report detailing an increase in discretionary publication bans in B.C. and different provinces is a priority says a Vancouver lawyer.
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A report that reveals an growing variety of publication bans being utilized for in courts in B.C. and different provinces is “troubling,” says a longtime Vancouver media lawyer.
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On the weekend, a Nationwide Put up story revealed that of all recognized discretionary publication bans being sought throughout the previous two years in courts throughout 4 provinces together with B.C., there was a 25 per cent improve from one yr to the following in civil and legal instances.
A publication ban is a measure aimed toward limiting publication of sure info in a case, starting from a single piece of data, such because the identification of a witness, to a complete continuing.
Discretionary bans are people who could or is probably not granted by a decide listening to a case and that may be challenged. Some bans are computerized, not requiring an software to court docket, or obligatory, which require a decide to grant them if they’re requested by a celebration.
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The Put up research gathered its knowledge from publication-ban notification programs designed to maintain media knowledgeable of upcoming purposes.
Rob Anderson, a Vancouver lawyer who dealt with ban purposes for The Vancouver Solar for a few years, together with numerous high-profile instances, famous that there’s a presumption of openness within the courts and that bans symbolize an infringement of freedom of expression and freedom of the press.
The Put up’s findings present a major improve in bans, a change that’s “very troubling,” he mentioned.
“That’s one thing that ought to concern all Canadians. The open-court precept is very vital. We now have to be vigilant to make sure that the courts stay as open as they are often.”
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Anderson mentioned the Supreme Courtroom of Canada has discovered that there’s not a hierarchy of constitutional rights, so among the causes for bans, together with to guard honest trial rights and witnesses, should not extra vital than freedom of expression.
“So the courts have to begin from that proposition after which weigh the distinctive circumstances of every particular person case and make sure that if there’s going to be restrict, it’s as minimal as potential.”
An evaluation of the information discovered that 71 per cent of requests asking a decide to forestall individuals from figuring out one thing that might usually be public info have been made in civil instances, akin to lawsuits in opposition to individuals or companies or household disputes.
The remaining 29 per cent of ban requests have been made in legal instances. Many of the ban purposes in legal instances — 75 per cent of them — have been made by Crown counsel, who’re tasked with the job of guaranteeing a good trial and inspiring and defending witnesses and victims.
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A lot of these requests for discretionary bans in legal instances associated to the identities of victims and witnesses.
The ban-notification programs doesn’t observe the end result of the purposes.
Nevertheless knowledge from the attorney-general’s ministry obtained by Postmedia signifies that discretionary bans imposed in B.C. legal courts have been rising for the previous 10 years.
For instance, there have been 206 discretionary publication bans positioned on witness and sufferer identities in B.C. provincial court docket in 2011-12, rising to 475 in 2019-20. The numbers went all the way down to 357 in 2020-21 however the ministry attributed that partially to the suspension of court docket operations as a result of COVID-19.
The ministry’s numbers taken along with the Put up’s knowledge additionally level to a priority that many ban purposes should not being forwarded to the media. The system doesn’t legally require all ban purposes to go to the media.
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Requested to touch upon the Put up’s findings, Dan McLaughlin, communications counsel for the B.C. Prosecution Service, mentioned it was tough to remark typically on the various points referring to the varied publication bans accessible to the courts.
“I can say nonetheless that the B.C. Prosecution Service requests discretionary publication bans on the identification of victims and witnesses when the circumstances set out within the related sections of the Felony Code are happy,” he mentioned in an e-mail.
“The decide or justice listening to the appliance could grant the ban in the event that they conclude that the statutory standards or the take a look at set out within the R v. Dagenais and R v. Mentuck instances have been happy.”
“Beneath our system of legislation, the judicial department of presidency is separate and unbiased from the chief department of presidency. As such the ministry isn’t able to touch upon the explanations for a rise within the variety of publication bans or find out how to scale back that quantity.”
With information from Postmedia Information
kfraser@postmedia.com
twitter.com/keithrfraser
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