By: Debby Waldman and Mary McIntosh Bans on preliminary hearings are routine in the United States' northern neighbor; in the past, there have been bans on trials, but until recently, little attention was paid to them sp.
WHEN AN ONTARIO judge barred foreign reporters from his courtroom last summer, his intent was to ensure a fair trial for a man accused of murder. Instead, Justice Francis Kovacs sparked a cross-border squabble and an international debate about press freedom. Kovacs' publication ban prevented the Canadian media from reporting all but the most innocuous details of the manslaughter trial of Karla Homolka, who was convicted. Homolka and her estranged husband, Paul Teale, were accused of brutally torturing and killing two teen-age girls in southern Ontario in 1991 and 1992. Because evidence in Homolka's case would affect Teale's trial, the judge closed his courtroom to all but a handful of Canadian reporters. Teale's preliminary hearing is scheduled this month. The U.S. media published and broadcast information about the grisly slayings and criticized Canadian journalists for obeying the ban. Canadian journalists don't like publication bans any more than their U.S. counterparts, and they resent statements that such restrictions wouldn't be tolerated south of the border. "Judging from the editorials, they think we're some banana republic that doesn't understand free speech," said Sean Fine, justice reporter at the Toronto Globe and Mail. "They haven't taken the time to understand what the publication ban was really about." The original request for a ban came from Teale, who later changed his mind and asked that the details of Homolka's trial be made public. However, government lawyers decided that a ban was necessary to protect Teale's right to a fair trial. Under Canadian law, if details were published, Teale later could argue that his trial had been compromised. Teale said he would not use such an argument. But legal experts said that in a worst-case scenario, an open trial for Homolka could enable Teale to go free. In his ruling, Kovacs noted that publicity about trials in the United States is balanced by an exhaustive and probing jury selection process, which in all likelihood would not be permitted in Canada. Also, Canadian juries are rarely sequestered and therefore may be influenced by media reports. The ban underscores differences between the legal systems in the United States and Canada and the media's role in reporting on courts. "We don't have First Amendment rights explicitly stated," said John Cruickshank, managing editor of the Globe and Mail. "We're a different kind of operation ? a different kind of nation." Canada's equivalent to the U.S. Bill of Rights is the Canadian Charter of Rights and Freedoms, adopted in 1952. While one section outlines fundamental freedoms, including that of the press, another says that "any person charged with an offense has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal." Independent and impartial doesn't mean ignorant, merely "fair-minded and objective," Cruickshank said. But just as the First and Sixth amendments in the Bill of Rights often have a built-in conflict, so do the two sections of the charter. "One is imparted for the benefit of the media. The other is to protect an accused," said Gerald Gall, a constitutional law professor at the University of Alberta. "The difficulty comes in trying to satisfy everyone." In Canada, bans on preliminary hearings are routine. In the past, there have been bans on trials, but until recently, little attention was paid to them. Observers such as Gall believe that the number of bans is increasing. In the past year and a half, the media has reported ? and in many cases protested ? bans on a number of trials, ranging from family feuds to charges of pedophilia. U.S. television programs carrying banned information have been blacked out by Canadian cable companies, newspapers have been confiscated and in a particularly bizarre instance, a fictional television movie was kept off the air because a judge said it too closely resembled a case that was about to be heard in an Ontario court. The Homolka ban generated considerable controversy because the case was so sensational; the slayings were among the most horrific the country has witnessed. U.S. media coverage merely intensified interest in Canada, where those hungry for details found what they wanted in foreign newspapers, on computer bulletin boards and in faxes sent by friends in the United States. The leaks reinforced what critics have been saying all along ? that bans don't work. "Bans are increasingly less effective," said Peter Desbarats, journalism dean at the University of Western Ontario. "It's technologically impossible to enforce the ban and bar information at the border." Nevertheless, most Canadian journalists have been unwilling to break bans. Only a tiny giveaway newspaper in Victoria, British Columbia, published details of the Homolka case. To date, no legal action has been taken against it, possibly because of the newspaper's limited circulation and influence. Charges of contempt of court might have been brought and the public response been harsh had a larger newspaper broken the ban. "Canadian media, owners and editors are reluctant to break the law," Desbarats said. "They believe the right course is to oppose the ban in court. The public wouldn't be sympathetic with a conscious decision to break the law." In January, Canadian Broadcasting Corp.; the Globe and Mail and its parent company, Thomson Newspapers; the Toronto Star, and the Toronto Sun challenged the Homolka ban in the Ontario Court of Appeal, arguing, among other points, that it violated the Charter of Rights and Freedoms. No decision has been made; the court has yet to determine whether the media even has a right to mount such a challenge because challenges usually are brought by parties directly involved in a criminal trial. Regardless of the decision, there is a sense that the courts might be reluctant to impose bans in the future. Gall said judges don't like the attention brought by the bans. And Cruickshank said the courts recognize that an important function of the media is to keep the judicial system accountable. In the Homolka case, accountability was missing. When Kovacs sentenced Homolka to two concurrent 12-year prison terms, journalists were present, but they weren't allowed to report what she had done to earn such a sentence. "We have somebody off to prison [but] we don't know why," Cruickshank said. "We didn't see good triumph over evil, and that is primarily how we uphold the fairness and safeness of our communities." In protesting the Homolka ban, media lawyers have pointed to the United States as a place where prior restraint is rarely imposed. Others see it as a place where the line separating tabloid journalism from serious news has blurred. Some Canadian journalists said extremes in the United States have made it difficult for the media to challenge bans such as the one imposed on the Homolka trial. "People look south of the border and abhor what they see," said Murdoch Davis, editor of the Edmonton (Alberta) Journal. "There's a huge gulf between where we are and where they are. They assume because they have the legal right to publish, that they should publish it. They have a blind sense that when it comes to press freedom, they must use it or lose it." Unlike the United States, where mass media is big business, Canada has only one national newsmagazine, one national newspaper and few tabloids. Cameras almost never are allowed in courtrooms. There are no Canadian equivalents of Hard Copy or A Current Affair. And cases as horrifying as the one involving Teale and Homolka are extremely rare. "Generally speaking, the media pays less attention to what happens in courts here than they do in the U.S.," Gall said. "Cameras in the courtroom, Court TV ? this is a big industry in the U.S., but it's a nonindustry in Canada." But that doesn't mean that Canadians don't want to know what is happening in their own backyard. In November, when the Buffalo News and Detroit News ran a Washington Post article describing the girls' slayings, Canadians streamed across the border and snapped up several thousand copies. News editor Murray Light said many Canadian readers wrote thanking the News for publishing the story. An equal number of U.S. readers blasted the decision, calling it irresponsible and disrespectful to the Canadian legal system. "Canadians resented the fact that their court had imposed a ban and they were deprived of the right to find out what had gone on in their courtroom," Light said. "Our own readers were more sympathetic to the Canadian government." The U.S. readers accused the News of running the story to sell more papers, a charge that Light denied. The paper has been following the case since it broke, he said, and the Post story "was an effective follow-up." U.S. and Canadian editors agreed that their goal is to inform their readers. Neither approved of press bans. But while Light said he doubts that he would comply with a ban issued by a U.S. judge "trying to impose and restrict our freedom to publish here in the United States," Cruickshank believes that in the free press-fair trial debate, the rights of the accused should take precedence. "I think fundamentally you'd have to say the right to a fair trial is paramount in any society ruled by law," he said. "In the end, we do want to be ruled by law and not the press." ?( Waldman and McIntosh are free-lance journalists based in Edmonton, Alberta) [Photo ID]