News blackouts unjustifiably prevented the public from learning why charges were dropped or suspended for some terror suspects, media lawyers told Canada's Supreme Court on Monday.
Several media organizations, including The Associated Press, are asking the Supreme Court to lift reporting restrictions on preliminary hearings in criminal cases.
The appeal relates to the 2006 arrests of the "Toronto 18" _ accused of planning to bomb the Toronto Stock Exchange and two government installations.
One man has been convicted and four more have pleaded guilty. Seven have had the charges against them withdrawn or suspended, but the media are not allowed to report why. Six more are awaiting trial.
Under Canada's criminal code, reporters may attend preliminary hearings but are barred from reporting nearly all details if the accused asks for a publication ban.
Media lawyers for the AP, the Canadian Broadcasting Corp., CTV television and the Toronto Star argued that reporters in courtrooms serve as surrogates for the public and have an obligation to report about allegations against suspects. Lawyer Paul Schabas said the public has the right to know why some suspects were released on bail and later had their charges withdrawn.
"All of the bail and preliminary proceedings have been effectively been under a cone of silence," Schabas told the nine justices. "Why, the public may ask, are these men who the police described in their press conference as being dangerous terrorists, posing a real and serious threat to Canada, being released."
Schabas said the bans prevent scrutiny.
"The public's right to know is lost. Justice is not being seen to be done," he said.
The court also heard from a different set of media lawyers about an Alberta case that challenges the same section of Canada's law on bail hearings. In that case, the public was shocked when an Edmonton man accused of killing his pregnant wife was released on bail. A publication ban prevented the public from knowing why he was released. The man was later convicted of second-degree murder and sentenced to life in prison.
Lawyers for some of the terror suspects and the government argued that the existing system of automatic bans is necessary to protect fair trial rights and ensure bail hearings take place expeditiously.
John North, a lawyer for the government, said in his written submission to the court that the bans protect the fair trial rights of the accused since jurors may be influenced by prejudicial information disclosed at a bail hearing that was not admitted into evidence at trial.
North said that is particularly important these days because the internet preserves pretrial stories and search engines like Google make it easy for any person to access this information at any time.
Schabas said juries can be trusted and that fair trial rights are not so fragile.
Lawyers for the media in the terror case lost an appeal before Ontario's Court of Appeal in a 3-2 majority decision announced in January. In the majority lower court decision, 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 that the limit on freedom of expression is justified to prevent the potential breach of fair trial rights. The two dissenting judges agreed with the media's position.
The Supreme Court reserved judgment for a later date.