Frances Twitty
Terrorism trials are of pressing public interest, yet because of a sweeping publication ban, we won't be allowed to report in much detail on the Toronto 18, a group of accused plotters, some of whom attempted mass murder.
There is something here that goes to the heart of our system of justice. But we can't say what it is, except to say that there is a name we aren't allowed to use, and that if it is not unprecedented to ban the use of this name, it is rare. A judge has ordered the media not to use this name, and further, banned mention of the relevance of this person. (The name is not that of an informant. We can say that much.) We are not allowed to say what we're not allowed to say.
Then there are the things we can say, but only for a short time.
Until Saturday at midnight, we can talk about Zakaria Amara, the ringleader of a group of homegrown plotters that intended to blow up the Toronto Stock Exchange and other landmarks, and who was sentenced to life in prison this week. After Saturday at midnight, we can't tell you much of anything about his trial or why he was found guilty. We can't tell you about the evidence and other information related to 17 other people either.
As for why, we can tell you something, but not everything. We can say that one accused will be tried before a judge alone, and five others before a jury. There is a concern that reporting of evidence from other people's trials will influence the jurors in the trial of the five whose trial is expected to start soon before a jury. Similarly, there's a concern that what has been said in court about Mr. Amara's trial, if it continues to be discussed in the media, would create bias among the jurors. We are allowed, for a while, to report on the trial of Shareef Abdelhaleem, who is being tried before a judge alone. But when the trial of five others starts before a jury, the judge anticipates that he will not allow the media to report any more, until the jury of those five others is sequestered to rule on guilt.
Why is openness so important? Because the public needs as much information as possible to ascertain whether justice is being done - that is, whether the trials are fair and helping to keep society secure from terrorism. "The public has the right to determine whether all of the players in the criminal justice system are performing their respective roles in a fitting and proper manner," Mr. Justice Ian Nordheimer of Ontario Superior Court said two years ago, rejecting a request for a similar publication ban in a trial related to the fatal shooting of teenager Jane Creba in downtown Toronto.
There are no secrets in the Internet age; much of what is banned will remain available in cyberspace. Juries in this new world cannot and should not be babied.
Far too often, judges seem to forget or tune out the "new" rules around publication bans on criminal trials, as set out by the Supreme Court of Canada in 1994. A ban has to be a necessity; the danger to trial fairness has to be more than just speculative; openness and fairness are on an equal footing.
A judge who bends over backward to protect trial fairness needs also to give equal thought, and weight, to the open-court principle.