National Post (National Edition)
PUBLICATION BAN FOUL-UP IN MURDER CASE NO LAUGHING MATTER.
No notice to media on unclear order
In the scheme of things — a dead doctor, her physician husband arrested and charged with first-degree murder in her death, and at least for the time being three children essentially orphaned — this was small potatoes.
But from a systems perspective, what happened at Toronto’s Old City Hall courts Saturday, when Mohammed Shamji made his first appearance, was nonetheless a grotesque comedy of errors, or, as one lawyer said Monday, “a total shit show.”
A partial recording of Shamji’s bail hearing — and by partial, I mean partial, in that it was exactly one half-page long — obtained by Postmedia’s Sam Pazzano Monday, shows that Shamji’s lawyer, Liam O’Connor, asked for a ban on publication on the proceeding and that the Crown attorney asked for a noncommunication order preventing Shamji from talking to two witnesses.
The first is a standard statutory publication ban common at bail hearings; the second is also a common feature of criminal proceedings, the idea being to keep an accused person from potentially influencing the evidence of a witness.
O’Connor didn’t oppose the Crown’s request, and Justice of the Peace Odida Quamina promptly imposed both a .517 order and a .486 (5) (1) order.
The former is the appropriate order to keep a bail proceeding under wraps, so as to protect the accused’s presumption of innocence.
The latter, alas, is another statutory publication ban designed to protect the identity of a victim or witness.
This was not, in fact, what the prosecutor had asked for, but she said nothing to correct the JP, and neither she nor O’Connor nor the JP gave a moment’s thought to their collective legal obligation to give the media notice about the proposed publication ban, so that newspapers and TV stations and the like could rustle up a lawyer to argue against them.
Canada has open and public courts, and the “open-court principle” — it says that all such proceedings should be as public as possible and subject only to minimal restriction and only after the court has heard evidence that the restriction is necessary — is supposed to guide these decisions.
That’s the law, as reiterated by the Supreme Court of Canada, and that’s the theory; in practice, it’s often a different story.
In any case, back to the Shamji proceeding, which was now officially under wraps, with a ban prohibiting the identification of … well, someone. No one said which people should have their names protected. It was done. Reporters who were there and heard these garbled, incoherent and totally unquestioned orders were understandably confused. News organizations were uncertain: Was it the identity of the victim, family physician Elana FricShamji, which was protected? Was it the alleged killer? Was it some unnamed witnesses?
Some organizations used both Shamji names; others, out of what lawyers call an abundance of caution, didn’t use the victim’s name.
Media lawyers were duly scrambled on behalf of their clients, secured little cooperation and no assistance from the Crown, and finally, Paul Schabas, a veteran of such battles who just happened to be downtown at Osgoode Hall on a Saturday morning, was duly enlisted to attempt to get the mysterious bans reversed.
He arrived at the Old City Hall courts about 12:30 p.m., just two hours after the original proceeding. Someone finally told him Quamina was due back shortly, so Schabas waited.
He told Quamina that something similar had happened last summer in the case of the alleged crossbow killer, where Crown prosecutors sought a publication ban on the names of three victims, gave no reason whatsoever and no notice to the press, and faster than you can say Jack-the-bear a sweeping pub ban was imposed.
A few days later, a prosecutor sheepishly told the court the ban wasn’t needed anymore, and off it came.
That, Schabas told Quamina, is wrong, and he was tired of the courts imposing bans, seemingly at will and in defiance of the law.
Quamina apparently chuckled, and Schabas said, “I see laughter and chuckles. This is a serious matter when a lawyer asks a court for a publication ban …. I’m troubled that the defence and the Crown and the courts did not turn your minds” to any of this, particularly the ostensibly mandatory notice for the media.
He expressed, Schabas told Postmedia Monday, “real concern when neither the judge (the JP) nor the Crown protects the public’s right to know.”
The JP, to use common parlance, blew Schabas off, but before he left, he said to Quamina, “You’ve disregarded the law too.”
It pales in significance to what allegedly happened to the young doctor and mother, but it matters still: Justices of the peace, officers of the court as all lawyers are, are supposed to guard the law, not disregard it.