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| Patrick J Ducharme |
The Justice is given the power to delay any broadcast or publication of the bail proceedings until either the end of the preliminary inquiry if the accused is discharged, or the end of the trial if he is subject to an order of committal to trial. If the accused is the one who requests a non-publication order the Justice is required to make the order. If the prosecutor requests the order of non-publication the Justice has discretion as to whether to grant the order. As a matter of practice an order of non-publication of the proceedings is ordered without exception.
The order of non-publication relates to the evidence taken or the information given, the representations made and the reasons, if any, given by the Justice in making a release or detention order. The media are still entitled to report that the accused was before the court, the offence charged, and whether the accused was ordered detained or released. The Code does not prohibit the publication of the decision itself, just the reasons that support the decision and the evidence. It would be a breach of a non-publication order if the media, for example, were to report that the onus of proof was on the accused because of a pending indictable offence alleged against him. It would not be a defence for a member of the media if charged with breaching a non-publication order, to claim that the member of the media did not know about the order or did not intend to violate the publication ban.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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