Constitutional Law – Mandatory Publication
Bans at Bail Hearings do not Infringe the Freedom of Expression
Guarantee under the Charter
This appeal, which arose in the context of two high-profile
cases in Alberta and Ontario, involved a consideration of the
constitutionality of s. 517 of the Criminal Code. The
appellant media organizations argued that the provision is an
unjustifiable violation of the Charter's freedom of expression
guarantee because it provides for a mandatory publication ban of
the evidence and information produced at a bail hearing if
requested by the accused.
In an 8–1 decision, the Supreme Court of Canada upheld
the constitutionality of s. 517 under the Oakes test.
Parliament's pressing and substantial objective was to both
ensure expeditious bail hearings and to safeguard an accused's
right to a fair trial. The s. 517 mandatory publication ban is
rationally connected to this objective because it prevents the
dissemination of evidence which, at that point, was untested for
relevance or admissibility.
The mandatory publication ban also meets the requirements of the
minimal impairment aspect of the Oakes test.
The ban is limited to a preliminary stage of the criminal
justice process and is not absolute. The information subject to the
mandatory publication ban is untested, often one-sided and largely
irrelevant to the search for truth. Although the ban may make
journalists' work more difficult, it does not prevent them from
conveying and commenting on basic and relevant information
concerning the case at issue.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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