Reponse du Ministre de la Justice

Correspondence from the Minister of Justice and Attorney General of Canada

monday, July 18, 2011 12:19:59 PM

Message body

Dear Mr. Malthus:

The Office of the Prime Minister has forwarded to me a copy of your correspondence concerning the impact of media attention on an accused person’s right to a fair trial.  I regret the delay in responding.

As Minister of Justice and Attorney General of Canada, I am mandated to provide legal advice only to the federal government.  I hope you will understand that, for this reason, I cannot comment on a specific case or a specific decision made by the courts.  I can, however, provide you with some general information.

One of the challenges of formulating legislative reforms to protect the privacy of accused persons is that these reforms must also respect the open court principle.  Public access to our court system fosters public confidence in the integrity of the justice system.  In addition to ensuring a fair trial, there is also a public interest in protecting the freedom of the press to gather and disseminate information.  This principle is given constitutional protection through subsection 2(b) of the Canadian Charter of Rights and Freedoms.  As you may be aware, all legislative reform must be consistent with the Charter; thus, with respect to the publication of the names of accused persons, a balance must be struck between the public’s right to know and the privacy interests of the accused.

The Criminal Code currently includes several exceptions to the open court principle to facilitate victims’ or witnesses’ participation, to protect privacy, or to protect the rights of the accused to a fair trial.  The Code also grants trial judges the discretion to control proceedings in their courtrooms, relying on their common law jurisdiction, including the discretion to impose publication bans on their rulings, on particular evidence, or to exclude members of the public.  An accused person or the prosecutor may also apply to change the location of a trial where such a move is necessary to ensure that the accused has a fair trial with an impartial jury. 

Additionally, should any member of the public make death threats or commit other criminal acts against a person who is charged with an offence, they may be subject to prosecution for their actions. 

I recognize the seriousness of the concerns you raise and have shared them with departmental officials.  However, it is my view that the protections and flexibility of the current law provide an appropriate balance between protecting the accused from prejudicial inferences about guilt or innocence and the public interest in the media’s right to gather and disseminate news. 

I appreciate having had your comments brought to my attention.

Yours truly,

The Honourable Rob Nicholson