CANADA

A delicate balance

A court weighs rights in the Homolka case

BARBARA WICKENS February 14 1994
CANADA

A delicate balance

A court weighs rights in the Homolka case

BARBARA WICKENS February 14 1994

A delicate balance

CANADA

A court weighs rights in the Homolka case

BARBARA WICKENS

Winnipeg college students Neil Hiebert,

26, and Craig Knapp,

18, took a calculated risk. Last month, they broadcast on their campus radio station portions of a Washington Post story about the trial of Karla Homolka, the 23-year-old St.

Catharines, Ont., woman convicted in July of manslaughter in the grisly deaths of Ontario teenagers Leslie Mahaffy and Kristen French. In reading out the excerpts, Hiebert and Knapp broke a publication ban imposed by an Ontario judge until after Homolka’s estranged husband, Paul Teale, 29, has been tried on first-degree murder charges in the killings. As a result, the two students have been banned for life from Red River Community College station CMOR. More seriously, they could face contempt of court charges—and possibly time in jail. Still, the students maintain that they made the right decision to read the banned information.

Said Hiebert: “We believe that freedom of speech is an important issue.”

Last week, lawyers | representing five of 5 the country’s largest Teale (left); Homolka; Dubin media outlets made a (top): fair trial is paramount’ similar argument as

they attempted to convince the Ontario Court of Appeal to rescind the publication ban imposed by Ontario Court Judge Francis Kovacs, who presided over the Homolka trial in St. Catharines. According to Kovacs’s ruling, the media could report only Homolka’s 12-year sentence, but none of the factors the judge considered in arriving at a sentence that could see her released from prison in as little as four years. Lawyers for The Toronto Star, The Toronto Sun, Thomson Newspapers, the CBC and Rogers Cable TV argued that Kovacs’s ban was too sweeping and should have been restricted to specific evidence at the Homolka trial that might prejudice the Teale trial. They also claimed that the public must learn of criminal proceedings in a timely fashion if it is to have confidence in the justice system. Lawyers for the Crown, who accused the media of sensation-

alism in reporting on the charges against Homolka oj and Teale, responded that 5 the ban was needed to pro, I tect Teale’s right to a fair Já trial. While the appeal court reserved its decision, Ontario Chief Justice Charles Dubin, who presided over the hear-

ing, made it abundantly clear which way he leans on the issue. “The right of fair trial is paramount,” he said.

Publication restrictions are familiar to media covering the courts in Canada. Media cannot report the names of young offenders and victims aged under 18. Nor can they usually report details of bail or preliminary hearings. Once a case proceeds to trial, however, it is up to the presiding judge, if requested, to rule on what may or may not be disclosed outside the courtroom. Last year alone, judges across Canada imposed such publication bans in almost 60 separate cases. But none of the bans provoked the same degree of controversy—even outrage—as the Kovacs ruling. The issue has divided newsrooms and law offices across Canada, although not always along predictable lines. Some lawyers favor lifting the

CANADA

publication ban on the principle that the courts should be open to public scrutiny, while some journalists want to see the ban stand on the grounds that they do not want to jeopardize Bernardo’s right to a fair trial.

In stark contrast to Homolka’s trial last summer, which brimmed with curiosityseekers, the proceedings last week at Toronto’s Osgoode Hall drew scant public interest. The wood-panelled courtroom was only one-third filled with lawyers for the media and the Crown, as well as Teale’s own lawyer, Timothy Breen. In an unusual stand for defence counsel, who normally are the ones requesting publication blackouts, Breen also argued in favor in lifting the ban. “What has been published so far is more prejudicial to my client than had Kovacs permitted the entire proceedings to be published,” Breen told the hearing.

In presenting their arguments in favor of rescinding the ban, the lawyers had to deal with frequent and sometimes testy questions from the five appeal court judges. The judges pointedly reminded the lawyers that they were discussing a temporary ban on publication of evidence, not a permanent news blackout. They also warned that lifting the ban now might make it impossible for Teale, who is expected to go to court some time next year, to get a fair trial from jurors who have not been tainted by outside publicity. If that happens, they said, the murder charges against Teale will have to be

dropped. “I have seen the difficulty in getting juries,” said Justice Patrick Galligan. “You go through hundreds of potential jurors and maybe you could have a case where it’s impossible to find enough jurors to have a trial.”

The judges also took strong exception to

‘It would be very dangerous if media in the States would affect our justice system here in Canada’

the argument made by several media lawyers that extensive coverage of the case by some American media had demonstrated the futility of the publication ban. The Canadian courts have no jurisdiction in the United States, where the media, accustomed to the American constitution’s First Amendment right of free speech, can report court cases with many fewer restrictions. As well, the gruesome nature of the sex slayings, and the fact that they occurred in a part of southwestern Ontario

that many people in western New York state consider to be their own backyard, guaranteed sensational American coverage of the case. While Canada Customs seized U.S. newspapers at the border and cable companies blocked out American signals, modern communications technologies, including computerized bulletin boards, satellite dishes and fax machines, allowed thousands of Canadians to learn about the forbidden coverage. “I find it verging on the outrageous that it would be suggested to the court that it not make an order because it might be violated,” said Dubin. “It would be very dangerous if certain media in the States would affect our justice system here in Canada.”

In the end, all the arguments may be academic. Before the hearing even began, Crown lawyers claimed that the civil case should be thrown out because the media had no legal right to appeal publication bans in criminal trials. In response, the judges said they would hear the arguments on both sides, but reserve their decision on whether they can rule on the publication ban until the Supreme Court of Canada rules on a similar case emerging from a series of emotionally charged child sexual abuse trials in Martensville, Sask. In the sometimes byzantine realm of publication bans, precedents continue to take precedence.

BARBARA WICKENS