VANCOUVER--The trial and conviction of five extremists has ended a tale of terrorism but not before the media's right to report freely on Canadian courtroom proceedings was itself placed on trial.
Long after the five bombed and burned in the name of world peace, feminine dignity and environmental sanctity--and one of the ringleaders threw a tomato at the judge who sentenced her to life imprisonment--a little-publicized legal debate is reverberating through the justice system.
At the start of the terrorists' trial, the media challenged a defence motion for a prohibition on publicity1 and won a victory that could be reported only this month after the jury was finished with the case.
Defence lawyers, pointing a condemning finger at spectacular publicity,1 had tried to persuade Mr. Justice Samuel Toy to prohibit broadcasts or publication of court proceedings until all four trials the defendants originally faced were dealt with in the B.C. Supreme Court.
They argued that coverage of the first trial, particularly in light of pre-trial media coverage, would make it impossible to find impartial juries for subsequent trials.
Because no Canadian judge had ever ordered such a total blackout, the defence was forced to search out a precedent in nineteenth-century English case law.
Before ruling out a total muzzling of the media, Judge Toy heard arguments from seven media lawyers who drew from Canadian, U.S. and British jurisprudence numerous warnings about restricting coverage of the courts.
Defence lawyers fought to have the charges dropped entirely on grounds that advance publicity1 ended the possibility of a fair trial. In pretrial hearings, they showed Judge Toy tapes and clippings of a police news conference held after the five were arrested as well as later news stories.
Police proudly told reporters they had charged five members of a nation-wide extremist group responsible for crimes that included bombing the Litton Systems Toronto plant that makes cruise missile guidance systems, bombing a B.C. Hydro installation and firebombing Red Hot Video stores that rented sexually explicit tapes. Ten people were hurt, and damage ran to the millions.
They led photographers to a conference-sized table covered with manuals on handguns, explosives, books on the urban guerrilla movement and terrorism, and an arsenal large enough to equip a small army, all of it seized from the group's New Westminster home.
Appetites whetted, reporters pursued the story relentlessly. They tapped police sources for further information; investigated the group members' personal histories; conducted doorstep interviews with neighbors who spoke of their "secretive" ways, and sifted through garbage cans at the rear of the accused's house.
Ann Brit Hansen, now 30, Brent Taylor, 27, Juliet Belmas, 21, Gerald Hannah, 27, and Douglas Stewart, 27, were called terrorists, extremists and anarchists.
Defence lawyers first sought to have the charges dropped because of pre-trial publicity.1
Judge Toy rejected the application to drop the charges. Convinced, however, that the coverage had done nothing to help the accused get a fair trial, he struggled to find a remedy.
He then took a step unprecedented in Canadian law--he allowed the defence counsel a "blanket challenge" of the prospective jurors. Traditionally, defence lawyers are limited to checking a list of the names, addresses and occupations of the candidates for the jury and a brief glance at them when they appear in court to be chosen or rejected for the jury.
In this case, Judge Toy took yet another unprecedented step, suggesting to the defence lawyers that they apply for a bar on media coverage until all four trials were over.
The hearing brought together some of Vancouver's legal elite whose clients included the Vancouver Sun and Province, The Canadian Press, The Globe and Mail, the CBC, BCTV and CKVU-TV, two radio stations, the B.C. Association of Broadcasters and the Radio and Television News Directors Association.
The defence referred to a number of cases where judges had ruled that publicity1 would interfere with the administration of justice.
Lawyer Glen Orris, leading the defence team's application, also said that, if the constitutionally guaranteed freedom of the press conflicted with the right to a free trial, then freedom of the press must give way.
To find a case where a judge had prohibited publication of an entire trial, he had to reach back to 1821 in British law.
In Rex v. Clements, the trial judge cited a newspaper for contempt and forbade it from publishing details of three consecutive court cases, all held in a 10-day period, in which three men were being tried separately for conspiracy to mutiny.
Mr. Orris argued that the judge prohibited publicity1 because he was worried that witnesses in the first trial could see the testimony of other witnesses and could alter their testimony in subsequent trials to make it conform.
Media lawyers countered the defence suggestion that the bar was only temporary by arguing that the trials could take two or three years and that freedom of the press and public's right to know must include freedom to write a timely report.
Other media lawyers questioned whether Judge Toy had the power to prohibit publicity1 outside his provincial jurisdiction, an issue that still poses problems for judges in this age of instant long-distance communications.
In the end, Judge Toy rejected a bar on publication. While castigating police and media for some of their actions, he said an impartial jury had in fact been selected, despite the glare of publicity,1 and the rights of the accused had not been prejudiced.
Obstensibly, Judge Toy rejected the prohibition because the mutiny case cited by the defence had little application to the one before him.
It was obvious from his judgment that the sheer weight of legal thinking had much to do with his reluctance to fetter the press.
By far the most persuasive of those legal minds was the
eloquent Jeremy Bentham, an eighteenth-century British
philosopher and jurist whom the judge quoted extensively:
"In the darkness of secrecy, sinister interest and evil in
every shape have full swing. Only in proportion as publicity1
has place can any of the checks applicable to judicial injustice
operate. Where there is no publicity,1 there is no
justice."
(text of June 23, 1984 Globe and Mail article)
1-BECAUSE I KNEW "HOW MUCH [WAS] BEING LEFT UNSAID" ABOUT CRUISE MISSILES TESTS AND THE ARMS RACE BY THE INVOLVED POLITICIANS PRECEDING THE CRIME BY THE "SQUAMISH FIVE", LIKE JUSTICE TOY IN THIS CASE, I WAS TROUBLED BY HOW INADEQUATE PUBLIC AWARENESS AND UNDERSTANDING COULD PROVE A DETRIMENT TO A PROPERLY FUNCTIONING SOCIETY AND THE SAFETY OF INNOCENT PEOPLE.
AS A RESULT, IN AN AUGUST 21, 1984 SUBMISSION TO VICTORIA'S BISHOP REMI DE ROO, THE ROMAN CATHOLIC PRIEST WHOSE INVOLVEMENT IN THE 1978 STAGES OF MY "INTERNATIONAL DIPLOMATIC WORK...ON A DIRECT BASIS" FOR THE WORLD'S CHILDREN HAD LED TO MY SUBMISSIONS AT THAT TIME TO THE VATICAN AND TORONTO'S GERALD EMMETT CARDINAL CARTER, I ADDRESSED THE SUBJECT AFTER HAVING DONE SOME RESEARCH ABOUT JEREMY BENTHAM AND THE BROADER SUBJECT.
I HAVEN'T HAD THE TIME TO PREPARE THE TEXTS OF ALL THE PAGES OF THAT SUBMISSION TO BISHOP DE ROO, BUT IF YOU WANT TO READ THE TEXTS OF THE ONES APPLYING TO THIS SUBJECT, TAKE A SERIES OF (5) BRIEF SIDESTEPS HERE.
MAY I ONLY ADD, ABOUT THIS 1984 SUBMISSION TO THE INDIVIDUAL WHOSE ROLE IN THE 1978 EVENTS IS ACKNOWLEDGED HERE, THAT HAVING READ "THE HUNGER THAT GNAWS AT AFRICA", TERM OF REFERENCE 2) g) OF THIS SUBMISSION TO BISHOP DE ROO, HAVING TAKEN THE STEPS IN 1978 TOWARDS SETTING UP SOMETHING LIKE "BAND-AID" AND/OR "LIVE AID", I BEGAN ADDRESSING THIS SUBJECT AGAIN...3 OR 4 MONTHS BEFORE BOB GELDOF INITIATED "BAND-AID".
WHEN IT SEEMED THERE MIGHT BE RISKS TO HIS PERSONAL SAFETY BECAUSE OF HIS OUTSPOKEN NATURE, I INCLUDED WHAT YOU FIND IF YOU TAKE A BRIEF SIDESTEP HERE IN MY NOVEMBER 12, 1985 REGISTERED
LETTER TO SENATOR TEDDY
KENNEDY.
AND IN 1986, I SENT TO SIR BOB WHAT IS INDICATED BY WHAT YOU FIND IF YOU TAKE A BRIEF SIDESTEP HERE.
ON THE SUBJECT OF "PUBLICITY," CONSIDER WHAT IS EXPLAINED ABOUT THE WORD IN WHAT YOU FIND IF YOU TAKE A BRIEF SIDESTEP HERE, THE TEXT OF A 1988 REGISTERED LETTER TO A DIFFERENT FREE PRESS ORGANIZATION.