Away from prying eyes of press

Jun. 27, 2006. 01:00 AM

In the Brampton courthouse, two terror-related hearings are going on. The first set deals with the 17 men and boys charged with plotting to carry out domestic terrorist attacks, and particularly whether any of those arrested should be allowed out on bail.

I cannot tell you anything about those hearings (other than the fact they are taking place) because a justice of the peace has imposed a blanket publication ban on evidence presented there. I have also not heard any of this evidence.

What I can tell you — because this information came into the public domain well before the publication ban — is that the government maintains that some or all of the 17 were, at various times, plotting to behead the Prime Minister, blow up the Toronto Stock Exchange and take over the CBC building in downtown Toronto.

The government also claims that some of those arrested were involved in paramilitary training north of Toronto, that some tried to purchase fertilizer for use in making explosives and that the RCMP was so intimately involved in this attempt it was able to substitute a harmless white powder for the ammonium nitrate the alleged plotters were allegedly trying to buy.

Again, all of these claims were reported well before any publication ban. Some came from the RCMP and the Canadian Security Intelligence Service at a televised press conference; some came from defence lawyers citing the Crown's summary of allegations; some came from unnamed sources who claim to know the government case.

Which brings us to the second terror-related hearing going on at the Brampton courthouse. Given the fact that so many sensational allegations have already been made about the 17, another judge is being asked to rule on the question of whether a publication ban makes any sense.

This newspaper, along with the CBC, the Associated Press and The New York Times — supported by a lawyer for one of the defendants — are arguing that it doesn't. The government, along with at least one and perhaps more defence lawyers, want the ban to stay in place until the formal trial takes place — perhaps a year or two from now.

Let me let you in on a little secret. When I drove up to the Brampton courthouse yesterday morning to hear arguments about the validity of the publication ban, I was not sympathetic to the Star's position.

Newspapers beat their breasts about freedom of the press and the public's right to know. But they constantly break their own rules. About their own business operations, they can be self-serving, if not downright devious. Until recently, it was difficult to figure out the relative readerships of the Toronto dailies, so careful were they to present their competitors in the worst possible light.

Even the news itself is subject to self-censorship. Newspapers embedding reporters with Canadian troops in Afghanistan agree not to report certain details that might impair military operations. No major Canadian newspaper was willing to reprint the Danish cartoons on the Prophet Muhammad that outraged Muslims worldwide.

The point is not that any of this self-censorship is necessarily wrong. Why should newspapers give aid to their competitors, offend anyone or put Canadian troops in danger? Rather, it is that even the media think the public shouldn't know too much about some things.

In this context, publication bans on certain kinds of preliminary court hearings have some logic. The argument for such bans is that accused persons may not get a fair trial if the government is able to release damaging allegations about them in a one-sided fashion, without giving defence lawyers a meaningful chance to explain or rebut. That's why, under Canadian law, if a defendant requests a publication ban in a bail hearing, the presiding judge must grant it.

In this case, however, after spending a day cooling my heels in the Brampton courthouse and talking to some of those involved I came to the conclusion that the fairness argument simply doesn't hold water.

Paul Copeland, who is defending one of those accused, put it bluntly. In some cases, he said, publication bans can contribute to a trial's fairness. But in cases like this one, where so many of the most sensational allegations have already been revealed, they probably do no good.

Still, he's not formally addressing the media request. "I don't care about the publication ban," he said. "It's irrelevant."

Rocco Galati, who is defending another of the accused, argues strongly against the blanket nature of the ban. He says it's unconstitutional since his client didn't ask for it. Referring to what he calls the police "publicity bordello" of June 3, where the RCMP paraded alleged pieces of evidence before the news media, he says the ban is actually helping to ferment public opinion against those accused.

Star lawyers Paul Schabas, Tony Wong and Ryder Gilliland say a presiding judge should, in most cases, avoid blanket bans and apply them only to the proceedings of those defendants who specifically ask for them.

It's fair to point out that some defence lawyers in this case strongly disagree. Michael Block, who is defending one of the accused, notes that where the evidence is common to all defendants it makes no sense to issue publication bans piecemeal. "It is difficult to conceive of a case presenting more of a `real and substantial' risk to a fair trial than a highly publicized terrorism case," he writes.

My guess is that whoever hears this case will agree with Block and that the ban will stay. But I don't know for sure. Superior Court Justice Bruce Durno held a session with lawyers yesterday to try to figure out how to address this issue. But he did so in private, well away from the prying eyes of the press.