Who is protected here?
When gunfire breaks out in the food court of a busy shopping mall in the heart of the city, killing one, wounding six and terrifying hundreds, we all have a legitimate interest in the subsequent administration of justice. In Toronto, we don’t expect we will have to dodge bullets in a public place. Thankfully, shopping mall shootings are a rare event here. As a letter to the editor from a Star reader offended by Tuesday’s editorial cartoon depicting the CN Tower, a streetcar, a hotdog and a hand gun, pointed out: Toronto is a long way from being Chicago or Detroit. Understandably then, there is much public interest in last week’s Eaton Centre shooting in which Christopher Husbands, 23, now faces one count of first-degree murder and six counts of attempted murder. When Husbands appeared in an Old City Hall courtroom before a justice of the peace Monday afternoon, the lawyer acting on his behalf requested a ban on publication of evidence related to the case. That is largely routine in bail hearings and first court appearances. While the Star and most other news organizations committed to the important principle of open courts deplore these routine publication bans, we know we must honour them or face possible contempt of court charges. What was not routine when Husbands made his first court appearance was the Crown’s request for a ban on the names of the six victims shot in the food court. This extraordinary ban caught journalists in court off guard. It was given without notice. No reasons were provided for it. The media was not given opportunity to challenge it. All of this occurred in a Canadian courtroom in 2012 despite the fact that our Supreme Court made it clear in a 1994 ruling that those seeking a discretionary publication ban must provide evidence that it is necessary. No such evidence was presented in court Monday. The Star will oppose such bans in court when it believes it is in the public interest for the information to be made public. And news organizations and media lawyers have long argued that the media be informed in advance when courts are considering suppressing information from open court. In 2006, Ontario’s Panel on Justice and the Media recommended an electronic notification system to inform the media of applications for extraordinary bans. That has still not been done. In this case, reporters later learned the ban was granted at the discretion of the judge under a relatively new section of the Criminal Code — Section 486.5 (1) and (2), which allows for a publication ban “if there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed.” Given this, one would expect the Crown would have been obligated to demonstrate there is a risk of harm to the witnesses by providing such evidence. As the Star’s Betsy Powell reported, the legislation was enacted in 2005 in response to cases involving gun and street gang violence in which witnesses are often reluctant to testify if identified. But here, Toronto police have given mixed messages: on one hand, saying the reason for Saturday’s shooting was not gang related, on the other, saying the accused and the dead man were gang mem- bers.
Moreover, this seems to be a case of trying to bolt the barn door after the fact given the reality that the Star and other news organizations had already published the names and photos of most of the victims in the aftermath of the shooting rampage.
It is almost impossible to make news disappear completely from the digital universe. Following the ban, the Star removed the name of the 13-year-old Port Hope boy hit in the head by a stray bullet. He had been identified in a news release from the Hospital for Sick Children before the ban was imposed. But a Google search easily turns up cached stories from the Star and other news organizations in which his name still appears.
This ban was so flabbergasting and, in the words of the Star’s lawyer, Bert Bruser, “illegal,” that there was some talk in the newsroom of ignoring it. But as city editor Graham Parley told me, “I don’t believe we ever knowingly ignore a court order.”
Still, Parley questions whom the ban is intended to protect.
“I understand the principle of protecting witnesses who fear being the target of bad people who want to silence them. But I don’t understand how it applies here,” he said. “It appears there were witnesses who got better views of the gunman and spoke to the media about this. There is no ban on using their names.”
It’s unfortunate that no reporter from any media organization stood up in court to question this ban. Bruser tells me that had the Star known the Crown was seeking a ban, it surely would have opposed it in court that day. I expect these well-reasoned arguments then would have been presented in the open court.
Given the public interest in a shooting spree in a public place, we should have at least had that opportunity. publiced@thestar.ca