LFP Longform: Publication bans protect open secrets in digital era

It’s a safe bet that if you ask anyone who lives in the Wingham area, particularly near Bluevale, they would know who died in a double-homicide late last month.

Or, if you scour social media and did a little digging around, you would come up with their names.

But The London Free Press can’t tell you who they are – and it’s unlikely we may ever be able to tell you the full story of what happened at a rural address in northern Huron County, north of London - writes lfpress.com.

We are restricted by sweeping publication bans, thought by some to be a throwback to a simpler time before the easy dissemination of information through online sources and social media.

This is not the first, or likely the last time, publication bans have muzzled the news media. In the past, reporters have tip-toed through a minefield of bans in homicide and sex cases.

What we can say is that Kevin Carter, a 56-year-old Wingham man who worked at an auto parts plant and had a penchant for fishing, is charged with two counts of first-degree murder in the deaths of a man and a woman, plus sexual assault with a weapon and forcible confinement of a woman.

The charges stem from the discovery made March 29 at a rural address where two people were found dead and an injured woman was taken to hospital.

A man was arrested at the address.

But two court-imposed publication bans, one made at Carter’s first court appearance in Goderich with no media representatives in the courtroom and a second one at his first video appearance in court from the Elgin-Middlesex Detention Centre, have, for now, removed all chances of giving the public an understanding of what happened.

Nothing can be said that could possibly identity the complainant in the sexual assault. And only she can ask to have that ban removed.

There are many important details, but the media are prohibited from reporting them. To reveal them would be to risk contempt of court charges and possible fines.

Publication bans are the legal minefields for news media trying to show justice at work so citizens can decide if justice is being done.

And there’s a robust debate in journalism and legal circles about whether the bans have any teeth in a digital age where information is so easily found and spread.

This case may be a textbook example of how legal principles fall behind the realities of modern communication.

When Carter was brought to court for the first time after his arrest, and just hours after the bodies were discovered, a justice of the peace imposed a ban intended to cover evidence that might be revealed in a bail hearing in order to protectCarter’s fair trial interests.

It was clear the OPP were still in the early stages of the investigation and no sexually-based charges had been laid. The interpretation of the publication law by the justice of the peace — a provincially appointed position that sometimes doesn’t go to candidates with legal training— was that the ban extended to the names of the dead.

At about the same time, most news media were just finding out that there had been a double homicide. On any other day, had the news media been in court, the ruling on the publication ban would be challenged because charges, which include the names of homicide victims, are not considered to be evidence.

However, by the time the ban was disclosed to the media by the police the next day, there was no way for the media to object. The courts were closed for an Easter holiday beginning on March 30 for Good Friday until Tuesday, April 3, when Carter was slated to make a court appearance by video link from the London provincial detention centre.

At that appearance, the Crown asked for the case to be adjourned to the afternoon when more charges were expected to be laid by the police and another publication ban would be requested. The justice of the peace maintained that she agreed with the earlier ruling that the names were still protected.

That afternoon, Carter was charged with the sexual assault and forcible confinement counts, which automatically triggered a ban that would cover anything that might identify the complainant.

That ban covered all four charges and basically shut down any chance to tell the public much of anything.

But Ivor Shapiro, associate professor at Ryerson University’s school of journalism, doesn’t believe that restriction is unreasonable.

“Rightly or wrongly the Parliament of Canada believes that the victims of alleged sexual assault identities should be protected, almost at all costs,” he said.

PUBLICATION BANS IN THE KEVIN CARTER CASE

Two of the publication bans outlined in the Criminal Code of Canada were imposed in Kevin Carter’s first-degree murder case

Section 517: This ban can be ordered to cover all evidence and what’s said in the courtroom at a bail hearing. It is a temporary ban that extends until an accused is discharged from a preliminary hearing or at the trial. The logic behind the ban is to preserve an accused’s fair trial interests and stop any evidence from being heard by potential jurors in the community.

Section 486 (4): This ban restricts the publication of anything that could identify a complainant or a witness in a sexual offence. In the Carter case, this ban was imposed once he was charged with sexual assault with a weapon, and ended any publication of the identity of the complainant and by extension, of the people who were killed.

“And the reason Parliament believes this is that the information of people who are sexualized, particularly involuntarily sexualized, is something that stays with people forever. It continues to hurt them.”

Shapiro said Canadians believe in that law and that a woman “should have the choice about what she reveals about her past, in particularly when she has been invaded in a brutal way.”

If she wants to leave a community and establish a life elsewhere, if her name is published, it will forever be attached to the crime wherever she is, he said.

That trumps freedom of expression, Shapiro said, particularly in this case where everyone living near the crime scene knows the homicide victims and don’t need to see their names to understand the full extent of the tragedy.

While the people involved can be found on social media, the details of the crime aren’t there, which Shapiro says doesn’t make the court order “all that antiquated.”

Jeffrey Dvorkin, lecturer and program director of journalism in the department of arts, culture and media at the University of Toronto, disagrees. “The rules, in a digital age, are (antiquated) to say the least. It doesn’t serve justice or the alleged victims of the crime,” he said.

Dvorkin said what needs to be asked is “whose interest is the court serving in these publication bans?”

“I think it’s an antiquated rule that serves nobody except for (giving) some sense of proper caution that the law deems appropriate. But the law is not serving either its own culture or the citizens it’s supposed to protect.”

Media organizations should be pushing for the legal community and the courts to end bans “or find ways to circumvent them because in the end you have an obligation to your audience to tell this story.

“The legal system still operates as if the internet didn’t exist. They are operating under a set of assumptions that may no longer be valid,” he said.

The view from legal circles sees value in the publication bans used in the case.

Brian Farmer, former Bruce County Crown attorney and retired assistant Crown in Middlesex County, said the Criminal Code was amended with publication bans“to protect the interest of victims and witnesses.

“You can’t argue with it. It is an absolutely justifiable law,” he said.

But Farmer said that from a practical point of view, it’s naïve to think there hasn’t been information spread through the communities close to the crime.

“I think the overall intention of the code is laudable as much as I agree that the public should be informed as much as we possibly can about what’s going on,” he said.

Farmer said he’s lived in small communities and understands how quickly information – and rumours – spread. In one murder case that he prosecutedwhen he was a Crown, that was laden with publication bans, Farmer said, “The whole community was just one rumour after another. Practically speaking, that’s not helpful in the long run.”

There has to be balance, he said, between limiting information but informing the public of the correct information connected to the cases.

Often police and Crowns are concerned too much information could lead to a change of venue application that would move a case out of the communities where they happen. But the information age and social media have made those requests somewhat weak. And when the media doesn’t get the full accurate story, “the damage that can be done by social media is frightening,” Farmer said.

“In this particular case, in this particular community, given the social media today, everybody seems to know everything and then some. But I don’t know that’s in and of itself a good reason to say those sections of the Criminal Code are antiquated,” Farmer said of the publication ban laws.

But, he added, “today, the way information travels was never contemplated when this legislation was enacted. Maybe Parliament should have another look at it.”

As for The Free Press’s ability to tell the full story in the Kevin Carter case, “you’re kind of up a gum tree,” Farmer said.

That may be true but that doesn’t change the court’s order or how little the wider public can know about what happened near Bluevale.

At least for now.

jsims@postmedia.com

twitter.com/JaneatLFPress

OTHER THORNY PUBLICATION BANS

Paul Bernardo and Karla Homolka: Not everything about the notorious couple who raped and killed three Ontario schoolgirls, including Homolka’s sister, could be reported contemporaneously with their court appearances. Homolka competed her plea deal to plead guilty to two counts of manslaughter in 1993, two years before her ex-husband’s first-degree murder trial. The pleas and the facts surrounding her pleas were protected by a publication ban until the trial. Canadian news outlets respected the ban, but American media, notably in Buffalo, published the details of the case.

Michael Rafferty and Terri-Lynne McClintic: As happened in the Bernardo-Homolka case, McClintic pleaded guilty to first-degree murder in the death of Victoria (Tori) Stafford, the nine-year-old Woodstock girl who was abducted, raped and murdered in 2009. McClintic’s guilty plea was placed under temporary wraps by the court until Rafferty’s trial. The ban was partially lifted by the Supreme Court of Canada months later when media outlets could report the guilty plea.

Rehtaeh Parsons was 17 when she committed suicide after photos of her being raped by four boys when she was 15 were distributed over the internet. Child pornography charges were laid against two young men and a mandatory publication ban was imposed to protect her identity. The judge had no choice – but the ban meant Parsons’ family couldn’t continue their campaign to advocate for cyberbullying victims. Seven months later, Nova Scotia’s attorney-general declared that no one would be prosecuted for using Parsons’ name in a positive way.

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