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cjfe position paper



Secret Publication Bans, Selective Prosecution and Prosecutorial Conflict of Interest

Prepared by

Canadian Journalists for Free Expression

December 2003

"Where there is no publicity, there is no justice."

 - Jeremy Bentham in Principles of Legislation

(Cited by the Supreme Court of Canada In CBC v. New Brunswick (1996))

Canadian Journalists for Free Expression, 489 College St., Toronto, ON, M6G 1A5

1. Summary and Recommendations

Secret publication bans. Selective prosecutions. Jail for writing a book. It happened in Iran and Turkey - and now Canada.

Canadian Journalists for Free Expression (CJFE) believes the case of author Stephen Williams dramatically underscores the need for all Canadians to push for changes to laws and court practices to ensure that nobody in this country can be jailed because Crown prosecutors don't like the contents of his or her book.

Stephen Williams wrote two controversial books about the case of serial killers Paul Bernardo and Karla Homolka. In them, he criticized the plea-bargain deal with Homolka. The books were based in part on materials contained in a "Crown brief," a dossier prepared by police investigators and prosecutors for the trial. It is important to note that he was legally in possession of this Crown brief; there is no law against his possessing it. Some of the material in the brief was covered by a series of publication bans - but some of the bans themselves were sealed, meaning their contents are secret and it is thus not possible to know what is, and is not, covered under these secret orders.

Last April, Williams told a newspaper interviewer he planned to post material from the Crown brief on his website. When police said some of the posted material violated the publication bans, Williams responded by taking down the entire website. But days later, on a Sunday, police arrived at his rural Ontario home, took him into custody and jailed him overnight - an astonishing act of overkill. He could not get a bail hearing until the following day.

Williams was forced in May to surrender the Crown brief to a court despite the fact he was legally in possession of it. He now faces a highly unusual dual criminal-civil prosecution at the hands of the Ontario government - and what a prosecution it is. In May, he was charged with two counts of disobeying a court order. Five months later, on Oct. 22, prosecutors laid another 94 criminal charges of disobeying a publication ban and violating a court order - 58 in connection with the website that was up less than a day, 28 in connection with his first book, Invisible Darkness, and eight in connection with his second, Karla: A Pact with the Devil. A 95th charge, alleging he breached a civil order to turn over material to the authorities, was also laid on Oct. 22. In addition to these 97 charges, Ontario has launched a civil action seeking "punitive and exemplary damages" of unspecified amounts. No trial dates have been set. It is significant to note that this is not the first prosecution of Williams in this case: he was charged in 1998 with having viewed restricted evidence - the notorious video tapes made by Bernardo and Homolka - but was acquitted two years later.

In his books, Williams criticized the actions and decisions of Ontario provincial prosecutors. Canadian Journalists for Free Expression (CJFE) believes Williams may have been targeted by these same prosecutors. For this reason, the prosecution and civil lawsuit are fatally tainted by the appearance of a conflict of interest and self-justification by the same office, the Attorney General's, that Williams criticized in his books. CJFE is also concerned that Williams was essentially jailed for writing a book. CJFE believes there are several troubling issues and questions arising out of this case, including:

§ the overwhelming appearance of a conflict of interest on the part of prosecutors whose work was criticized in the book and who now are involved in these prosecutions;

§ what was the emergency that required the arrest of Williams on a Sunday?

§ why was it was necessary to jail Williams when he posed neither a danger to the community nor a flight risk?

§ why was Williams the only journalist required to surrender his copy of the Crown brief when at least two other media organizations are also understood to be in possession of the document and have never been so ordered?

§ why did prosecutors apply in 2003 to seize materials known to have been in Williams' possession since the mid-1990s?

§ why are courts allowed to issue sealed publication bans, effectively making it impossible for someone to know if they are in violation of such orders?

CJFE calls on the Attorney General of Ontario to:

§ cease immediately its criminal and civil prosecutions of Stephen Williams;

§ take steps, if the prosecution continues, to eliminate any perception of conflict of interest by turning the Williams case over to outside prosecutors.

§ end the practice of jailing people accused of publishing banned information where no threat to the community is posed.

CJFE calls on the federal government to:

§ enact legislation to eliminate secret publication bans that give no notice to people likely to be affected by them;

§ enact legislation requiring any person applying for a publication ban to deliver public notice of the application to all interested parties, including media organizations;

§ enact legislation to set out the criteria under which publication bans may be issued.

2. Background

On September 1, 1995, a Toronto jury convicted Paul Bernardo of first-degree murder in the sex slayings of two teenage girls in southern Ontario. He was also found guilty of kidnapping, forcible confinement, aggravated sexual assault and committing an indignity to a body. The conviction was obtained after Bernardo's wife, Karla Homolka, testified against him as a Crown witness. In return for her testimony, which depicted her as a victim of Bernardo rather than his accomplice, Homolka was allowed to plead guilty to the lesser charge of manslaughter. She received a 12-year prison sentence.

Video tapes recorded by Bernardo and Homolka of the assaults on victims were obtained by the authorities only after the deal with Homolka was struck. These video tapes were presented in evidence at Bernardo's trial. A judge subsequently issued a publication ban on the tapes and they were eventually destroyed by court order.

The following year, Stephen Williams published his first book about the case, Invisible Darkness. In it, he presented Homolka as a willing partner in the crimes and criticized prosecutors for the 1993 plea-bargaining deal. He based his contentions on evidence in the Crown brief, a collection of investigative material gathered by the authorities to support their case against Bernardo. It is significant to note that while such briefs are not in the public domain, there is no legal prohibition against releasing them, especially after criminal proceedings have concluded. In this particular case, Williams has said he received the brief from a source he would not identify, and has made it clear that his book was based in part on the brief, which was legally in his possession.

Two years later, a newspaper columnist wrote that Williams told her he had viewed the banned video tapes. Williams denied the charge but the columnist stood by her story. After an investigation that lasted nearly a year, Williams was charged in 1998 with breaching the court order that had sealed the tapes. He pleaded not guilty and was acquitted two years later.

In 2002, Williams published a second book on the case, Karla: A Pact with the Devil, in French (the book was published in English in 2003). In it he included correspondence between Homolka and himself, along with photographs from the Crown brief in the original case. And he returned to his earlier criticism of the deal between Homolka and the prosecution.

In April 2003, Williams told The Globe and Mail he planned to post material from the Crown brief on the Internet. In the face of a police investigation launched after the Globe and Mail article appeared, Williams pulled the material from his website following an allegation that some of the postings violated a court-ordered publication ban.

But on May 4, 2003, a Sunday, Ontario Provincial Police arrived at Williams' rural home and took him into custody, releasing him from jail the following day on $25,000 bail.

The previous day, May 3, the Attorney General of Ontario began proceedings to obtain a court order requiring Williams to hand over "all Crown brief materials" in his possession. That order, signed by Regional Senior Justice R.A. Blair, was granted on May 16.

On May 20, Williams surrendered the Crown brief materials although his lawyer says he plans an appeal of the surrender order.  A trial date has yet to be set on the 97 criminal charges against Williams. The Attorney General has also launched a highly unusual concurrent civil action against Williams seeking unspecified "punitive and exemplary damages."

3. Issues

A. Selective Enforcement

A key part of the Williams prosecution has to do with his possession of the Crown brief and the order to surrender the document. Such briefs are not in the public domain but there is no legal prohibition against their distribution, especially after court proceedings end. Crown briefs have served in this country as the basis for countless books, documentaries and newspaper articles about criminal cases.

Williams has been in legal possession of the brief for years. He was quoted by Canadian Press in May as saying he got it from a prosecutor, police officer or defence lawyer - he wouldn't say which.

Two Canadian television networks are understood to be in possession of major portions of the brief - if not the entire document. Yet neither has been served with a court order demanding its return. Further, neither has had one of its journalists arrested at his or her home on a Sunday and jailed. This suggests selective prosecution. The legal and financial resources of the two networks are considerably bigger than those of Williams, an independent writer. Is Williams being prosecuted because the government knows he cannot mount a costly defence? Moreover there is no doubt that police would have had to answer a flurry of difficult questions if they had hauled a big-name television network journalist off to jail on a Sunday morning. But Williams is a low-profile freelancer whose arrest provoked little controversy. Williams' lawyer has also asked why it was necessary to incarcerate Williams in the first place given that he posed no risk of flight. Consider that police appeared to go out of their way in this case - they drove to Williams' remote farmhouse to arrest him and take him to jail. Why this treatment when many other people who are charged are never incarcerated?

B. Punitive Prosecution

The successive prosecutions of Stephen Williams leave the appearance that Williams has been targeted by a vengeful Attorney General's office for criticizing the investigation and prosecution of the Bernardo-Homolka case. Officials of the Attorney General's office were named in the books, their work scrutinized and criticized.

Why then does the same Attorney General's office lead this prosecution? There exists ample precedent suggesting a fairer course of action - one less likely to suggest conflict of interest and punitive prosecution - would have been for the Ontario officials to call on counsel from another province to prosecute the case.

About six years ago, NDP MPP Peter Kormos visited the Family Support Office of the Ontario government and discovered major problems with the operation, problems that he used to partisan advantage against the Progressive Conservative government of Ontario. The Attorney General of the day alleged Kormos had trespassed. But instead of having Ontario officials investigate and prosecute, which could have left the government open to a suggestion of partisan use of the justice system, Ontario retained a prosecutor from New Brunswick to handle the case.

CJFE would have preferred that there be no prosecution. But absent that, a process of this sort would have done much to eliminate the appearance of conflict of interest and punitive prosecution of Williams.

C. Public Access to Court Documents

It is a fundamental tenet of our justice system that court proceedings are held in public; any citizen is free to attend court and observe the administration of justice. It has always followed that journalists, as citizens, may attend court and report on the proceedings to inform their fellow citizens who may have neither the inclination nor the time to attend themselves. This has been specifically recognized by the Supreme Court of Canada in Edmonton Journal v. Alberta (1989).

The Supreme Court of Canada ruled in Attorney General of Nova Scotia et al v. MacIntyre and Attorney General of Canada et al (1982) that once a search warrant has been carried out and materials found in the search are brought before a judge, the public has a right to examine the search warrants and the information on which the warrant was issued. Although the case dealt specifically with warrants, the judgment raised some key principles about the need to keep the judicial process open and public.

"Covertness is the exception and openness the rule," the Supreme Court judgment said. "Public confidence in the integrity of the court system and understanding of the administration of justice are thereby fostered ....

"At every stage the rule should be one of public accessibility and concomitant judicial accountability ... the curtailment of the traditionally uninhibited accessibility of the public to the working of the courts should be undertaken with the greatest reluctance."

In the years following adoption of the Canadian Charter of Rights and Freedoms, the highest court in the land has consistently reinforced this doctrine.

In CBC v. New Brunswick (1996), the Supreme Court ruled that a lower court judge had erred in excluding the public from court proceedings involving a man accused of sexual assault on two girls. "Mere offence or embarrassment will not likely suffice," the high court ruled, "for the exclusion of the public from the courtroom."

The lower courts have often defended this principle, too. In a 1996 ruling on the custody of the videotapes made by Bernardo and Homolka, Superior Court Justice Patrick Gravely said that "it is a necessity of the judicial system that often the privacy of victims and witnesses is sacrificed in order that justice be done. If the right to privacy were absolute, there would be few trials."

Canadians have always accepted that courts can impose limits on the publication of some evidence - child pornography, say, used in the prosecution of manufacturers, purveyors or owners of such materials. There will also be times when materials will be withheld from public scrutiny in order to ensure the fairness of subsequent court proceedings as is routinely done in jury trials before the verdict is rendered.

But this power to withhold should be used sparingly in order to ensure, as the Supreme Court wrote two decades ago, that "public confidence" is preserved. In spite of this, there are constant attempts by litigants and witnesses in the courts to keep information out of the public eye. As the Supreme Court explained in CBC v New Brunswick (1996), the openness principle acts "as a guarantee that justice is administered in a non-arbitrary manner, according to the rule of law."

In Canada, those who would write about criminal cases obtain Crown briefs to assist them in their work. Countless books, documentaries and television programs have been produced using this material. Yet in this case, the court order issued May 16 specifically required Williams to hand over to the court his Crown brief that he has had in his possession since the mid-1990s. Why is it necessary and urgent now to hand over a document that Williams has been known to have in his possession since the mid-1990s? Moreover, as Williams' lawyer has observed, it would be impossible to mount a defence against a charge of violating a publication ban on parts of the Crown brief without having the Crown brief in hand.

In this particular case, prosecutors do not have the justification of protecting future court proceedings; both Bernardo and Homolka have exhausted all their remaining avenues of legal appeal.

A case has been made that this material should be withheld out of compassion for the families of the victims. CJFE feels enormous sympathy for the families but sincerely believes the increasing tendency toward court-ordered concealment of evidence in criminal cases may lead to society losing its sense of empathy with, and sympathy for, victims of crime. A prerequisite for any sympathy and understanding is full access to the facts of a case; where there is an absence of information, there is also likely to be an absence of understanding.

D. Secrecy

One of the most troubling aspects of this case is that some parts of the publication ban on evidence in the Bernardo/Homolka case are, themselves, sealed. This means, astonishingly for Canada, that it is possible to be in contravention of a court order that one cannot consult. In other words, one could be in violation of a legal requirement that is unknown to any citizen.

This bizarre and alarming state of affairs stems from the casual and far-too-frequent issuance of publication bans. CJFE understands the need for publication bans in preliminary hearings, held to determine if there is sufficient evidence to take a case to trial. But it is much harder to justify them once a case has gone to trial. Evidence disclosed in open court has always been held to be public. The Supreme Court itself has repeatedly made the point that publication bans are too frequently imposed. It has shown a strong bias in favour of open courts and against secrecy in their workings. In Edmonton Journal v. Alberta (Attorney General) 1989, the High Court eloquently builds a case for this openness:

"It is exceedingly difficult for many, if not most, people to attend a court trial. Neither working couples nor mothers or fathers house-bound with young children, would find it possible to attend court. Those who cannot attend rely in large measure upon the press to inform them about court proceedings - the nature of the evidence that was called, the arguments presented, the comments made by the trial judge - in order to know not only what rights they may have, but how their problems might be dealt with in court. It is only through the press that most individuals can really learn of what is transpiring in the courts. They as 'listeners' or readers have a right to receive this information. Only then can they make an assessment of the institution. Discussion of court cases and constructive criticism of court proceedings is dependant upon the receipt by the public of information as to what transpired in court. Practically speaking, this information can only be obtained from the newspapers or other media."

Any effort by lower courts to support or seek publication bans which conceal from citizens more and more about the proceedings inside courtrooms must be weighed against the greater societal good as identified in the above passage. In addition to violating the basic right to access public information, such behaviour is an affront to citizens whose taxes support the court system.

Stephen Williams is a Canadian who makes his living as a freelancer. He did what journalists are supposed to do - tackle a difficult story and, in the process, shine a light on the inner workings of the justice system. Journalists must be free to do this without fear of prosecution by the very figures whose conduct they question.

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