By arthur Weinreb
Tuesday, april 12, 2005Prior to the testimony of Jean Brault, the former head of Groupaction, one of the largest recipients of the Liberal Party’s cash-for-doing-nothing scandal, Justice Gomery banned the publication of Brault’s evidence. The head of the Inquiry intends to issue similar publication bans regarding the testimony of Paul Coffin and Chuck Guité when it is their turn to testify at the inquiry into what is commonly referred to as adscam.
These three men have one thing in common--they are all facing criminal charges over their alleged roles in the corruption scandal. Justice Gomery has received a lot of criticism for imposing the bans, much of it south of the border where these types of publication bans are seen as a direct attack on freedom of the press. But the banning of the publication of evidence heard at pre-trial proceedings are routinely applied in criminal matters. The bans are imposed upon evidence adduced at an accused’s bail hearing and preliminary hearing and the information cannot be made public until the criminal trial is completed or, if it is a jury trial, until the jury is sequestered. The reason for imposing publication bans is to ensure that the accused receives a fair trial and that prospective jurors are not made aware of critical evidence prior to the commencement of the trial.
There may be a legitimate argument that these publication bans should be done away with and that freedom of the press and the public’s right to know should take precedence over any prejudice that an accused person may suffer. But given that these bans are a part of Canadian law, Justice Gomery was right in making the ban. He was criticized for imposing the ban because his inquiry is not part of the criminal process. But the ban was imposed to insure that Jean Brault’s rights were protected during his upcoming criminal trial. The fact that he is facing criminal prosecution went to the heart of why the ban was imposed.
Gomery’s handling of the publication ban was fair to the public whose interest in the testimony goes far beyond that in most criminal matters. His decision to revisit the ban after the testimony was completed and to then allow those portions of Brault’s evidence to be made public that did not directly affect the criminal charges against him minimized any damage that might have been done to the public if a complete ban were imposed.
and Gomery should not have refused to impose the ban simply because of the power of the Internet or the fact that the evidence could be published in other countries. The alleged corruption, not of individuals but of the party that governs Canada has attracted interest outside of Canada. It is absurd, as the Globe and Mail Globe pointed out, that the United States and the rest of the world can debate our affairs while we lack the information to do so. and the fact that Canadians can access foreign news sites on the Internet as easily as we can access Canadians ones is not a valid reason for doing away with the ban. although the banned evidence is available at the click of a mouse, the fact that the evidence has not been widely disseminated in Canadian and local newspapers, radio and television means that it will still be possible to empanel a jury in Montreal that has not heard or been affected by the testimony that is currently the subject of a publication ban.
The time discussing whether Gomery was right or wrong would be better spent discussing the broader issue of whether orders to ban the publication of evidence should remain part of Canadian law.