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Pretrial publicity: Report, draft statute, comments

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Summary

The BCCLA is convinced that pretrial publicity does affect the outcome of criminal trials. It follows, therefore, that some limitations on the freedom of the press must be defined in the interest of ensuring a fair trial to accused persons. We feel that the present reliance on the doctrine of contempt of court, by its uncertainty, gives inadequate protection to all parties concerned with contempts relating to prejudicial pretrial publicity: the person accused of the original crime, the court, and the media. In its place we propose a statute which would be punishable and the defences which would accompany application of the law. Statutory contempt would apply to lawyers, police officers and judicial employees as well as members of the news media, and would be tried separately on its own evidence and merits, with the accused having the right to trial by jury.

Report to accompany draft statute on pretrial publicity and contempt law

In very recent history there have been numerous criminal trials which have received widespread publicity through press, radio and television coverage. The cases in England arising from the Christine Keeler/John Profumo scandal or the Moors murders are examples, as are the proceedings against Dr. Sam Sheppard in the United States. Here in Canada we have the very recent example of the wide coverage given the destruction of computers at Sir George Williams University and the resulting court cases.

These cases are but the most dramatic examples of an important and difficult problem in the administration of justice: does pretrial publicity in the regular news media affect the outcome of criminal trials? Although a definite answer to this question has yet to be produced by research in the social sciences, we are convinced both by historical evidence and assumptions, and by modern sociological and psychological studies, that the answer is “yes”.1 Such an answer means that the procedures guaranteed a fair trial to an accused person are being undermined. And because they are being undermined by the news media, any solution to the problem apparently involves some limitation of the freedom of the media.

The conflict of issues is clearly stated by D.A. Schmeiser in his book Civil Liberties in Canada: on one hand is the right of the public to be informed on vital public issues and the corollary right of the media to publish such information; on the other hand is the right of every person to justice, administered duly, impartially, and with reference solely to facts judicially brought before the court.2 The problems involved in balancing these rights are myriad, and seem to thwart all but the most cynical of solutions, i.e., you can have one right, or the other, but not both. To those of us who have strong commitments to both rights, such a solution is intolerable. The question we are faced with is how best to reconcile the conflicts inherent in the controversy without compromising the basic integrity of our conviction that both rights are essential to a just society. In a specifically Canadian context, we must ask whether our present laws speak to this problem, and if so, how adequate is the solution they offer.

The framework of Canadian legal principles dealing with pretrial publicity is the English common law doctrine of criminal contempt of court.3That doctrine is interpreted by the Honourable Chief Justice McRuer, of Ontario, in the following terms:

Criminal contempt of court may be defined as any act done or any thing published tending to obstruct, impair, or interfere with the fair administration of justice or to bring the courts or judge into contempt; or any act done or writing published tending to obstruct or interfere with the due course of justice or lawful process of the courts.4

The punishable act is conduct which tends to interfere with the procedural safeguards of a fair hearing and thus to prejudice the position of a person having a cause before the court. It is clear that the doctrine is not for the personal protection of the justices or their dignity, but, again in McRuer’s words, “for the protection of the individual right of every citizen to an independent administration of justice free from influence or intimidation by improper conduct of any sort.”5

As implied in Justice McRuer’s definition, criminal contempts are of two general types: (1) those which scandalize the court by casting doubt on the integrity of the justices, and (2) those which prejudice the parties to an action by comment on the parties or the subject matter of the cause while it is pending. In this report, and the draft statute which follows, we are concerned only with the latter type of criminal contempt, leaving for another time discussion of its equally questionable companion.

The common law doctrine of contempt was in general application in Canada when it was specifically adopted by an exceptional clause in the Criminal Code. While section (8) of the Codestates that no person shall be convicted of an offense at common law, the section ends by stating:

but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or magistrate had, immediately before the coming into force of this Act, to impose punishment for contempt of court.

Thus, the definition of contempt and the description of information which, if published, may be punished under the contempt doctrine are left wholly to case law for development and refinement. It is this law that we must examine to decide whether the public, the media, and the persons accused of crime are being adequately protected by the law of contempt in Canada.

With all due respect to the Canadian courts, we submit that the interest of each of the three groups are being inadequately served under the law as it stands today. The primary reason for this situation is the uncertainty surround the definition of contempt. This uncertainty gives rise to seemingly contradictory possibilities. On the one hand, circulation conscious newspapers might divulge pretrial information which effectively turns jury deliberations into mere statements of opinion acquired before the trial, thus damaging the interest of the public in maintaining a fair administration of justice. On the other hand, a more cautious editor might decide not to divulge information of genuine public importance because he feared contempt proceedings, thus limiting the right of the public to be informed on such issues.

The uncertainty of the law is without doubt a problem to the responsible media which must decide under pressure of news deadlines whether or not to publish possibly prejudicial information. Under Canadian case law, the media are held to an extremely high standard of care in this uncertain area of the law.6 Even when exercising this care, however, the media have no defence if they publish prejudicial information without knowing of the existence of a related trial, or it they distribute publications which, unknown to the distributor, contain prejudicial material.7 The defences of innocent publication and innocent distribution were introduced into British contempt procedures in 1960.8 They should also be established as part of Canadian law. Until they are, and until the uncertainty blurring the limits of contempt is removed, the interests of the media are not properly protected by Canadian contempt law.

The rights of accused persons are also inadequately protected under the contempt law. We do not mean to suggest that Canadian courts have ignored the abuses which might arise from prejudicial pretrial publicity. On the contrary, the many Canadian cases we have studied leave no doubt that Canadian courts have assumed the power in general to punish the dissemination of prejudicial pretrial publicity, and that on occasion, this power is used to punish a flagrant abuser.9 But because the courts must decide case son the basis of the facts before them, only a few specific prohibitions have emerged from the generally foggy concept of contempt. There remains wide scope for questioning what kind of published information would be declared prejudicial by the courts, and thus be punishable under the contempt law. For this reason, the doctrine of contempt has not succeeded in eliminating prejudicial pretrial publicity.

Some newspapers are not deterred by the law when a sensational case presents itself; other member of the media may be honestly confused by the uncertain limits of the contempt doctrine and thus release information which is declared prejudicial by the courts. All of us may be aware of cases in which prejudicial information was made public, but where no court action was taken. We believe that the continued existence of prejudicial pretrial publicity indicates the present inadequacy of Canadian contempt procedures in protecting the rights of accused persons. The procedural devices which are attempts to eliminate the effects of prejudicial publicity are also inadequate to assure a fair trial, especially where news media have saturated a community (or province, or country) with information about a case.10

For the above reasons, we propose to eliminate constructive contempt as a common law crime, and to replace it with a statutorily defined contempt law. Such a move would clearly define the standards of constructive contempt for the news media and the courts, thus removing the elements of uncertainty and judicial caprice which have plagued the doctrine since its inception. A statutorily defined contempt law would clearly link the contempt doctrine to the protection of an individual’s right to a fair trial, and thus leave the news media more free to discuss vital public issues that might be only obliquely related to pending criminal trials.

We would like to emphasize that in helping to secure a fair trial for the accused person, the direct restraints on pretrial publicity that we propose are a minor restriction of freedom of the press which related primarily to the time of publication, and not to publication itself. Preventing the news media from distributing prejudicial information during the crucial pretrial period does not permanently prohibit publication of such facts. Once the information is introduced as evidence at the trial, it is part of the public record and may be published. If it does not appear in evidence, it may be published once the trial is over and the possibility of prejudice is removed. Our position was succinctly stated by a law review commentator:

To ask that the community not be exposed to potentially biassing facts before the trial is to ask only that the defendant be given an opportunity to be judged by an impartial jury in the ordered atmosphere of the courtroom.11

Our proposal is not a novel one in the area of contempt law. Already the common law doctrine of contempt has been substantially modified by statute in Canada. In 1956, section 9 of the Criminal Code established the right to appeal from a conviction of contempt or from the punishment imposed. Such an appeal was not a part of the common law doctrine, but was enacted as a necessity to make that doctrine conform to higher standards of justice. In 1959, the addition of section 455(2) to the Criminal Code broadened the contempt power to cover factual court reporting under certain specified circumstances. That section makes it an offense to publish or broadcast admissions or confessions given at preliminary inquiries unless the accused has been discharged or, if he was committed for trial, the trial has ended. This statute clarified one of the more confusing aspects of contempt law which had been only partially resolved by court opinion.12

Our proposed statute would eliminate the most confusing aspect of constructive contempt—its uncertainty. The kinds of information which would be punishable as contempt are described, and the defences that would, or would not, accompany application of the law are clearly set out. Statutory contempt, as we envision it, would apply to lawyers, police officers and judicial employees as well as members of the media; this would make the source of prejudicial information as liable as the revealer, a situation more equitable than today’s, in which the news media carry the primary burden of responsible decision-making.13

We believe that this statute would substantially improve the protection of rights belonging to the public, the media, and accused persons. With this in mind, we ask that the following statute be enacted into law.

Draft Statute: Crimes Against Public Justice

1. (a) No attorney, law enforcement officer or judicial employee shall divulge to any newspaper, magazine, radio or television station, or any other news-disseminating agency, or to any employee, servant or agent thereof, any information prejudicial to a defendant’s right to a fair and impartial trial in a criminal proceeding; (b) and no newspaper, magazine, radio or television station, or any other news-disseminating agency, or employee, servant or agent thereof shall publish or broadcast, or cause to be published or broadcast, any statement or information prejudicial to a defendant’s right to a fair and impartial trial in a criminal proceeding.

2. Any statement or information, whether fact or opinion, shall be deemed to be prejudicial to a defendant’s right to a fair and impartial trial if it relates (a) a prior criminal record, or the character or reputation of the defendant; or (b) the existence or the contents of any confession, admission or statement given by the defendant, or the refusal or failure of the defendant to make a statement; and (c) the performance of any examinations or tests, or the defendant’s refusal to submit to any examination or test; or (d) the identity, credibility, or testimony of prospective witnesses; or (e) the possibility of a plea of guilt to the offense charged or to a lesser offense; or (f) the defendant’s guilt or innocence or other matters relating to the merits or evidence of the case; or (g) transcripts, reports or summaries of occurrences taking place during the course of proceedings from which the jury, during a jury trial, has been excluded by the trial court.

3. Repetition in the same news media of any publication, broadcast or divulgence which violates this statute shall not be considered an additional violation of the statute but shall be considered as a factor in determining punishment; however, repeated publication, broadcast or divulgence after a conviction under this stature shall be deemed to be a new violation.

4. It shall be a defence to prosecution under this statute that a statement, information, opinion, publication or broadcast (a) was issued without the knowledge that criminal proceedings relating to the prejudicial matter were pending or imminent; or (b) was distributed without the knowledge that it contained matter prejudicial to a pending or imminent criminal proceedings; or (c) was issued without intent to prejudice the trial. The burden of proving any fact tending to establish the defence (a), (b), or (c) shall lie upon the person using the defence.

5. It shall be no defence to a prosecution under this statute that a statement, information, opinion, publication or broadcast was true.

6. Any person who violates this statute shall be in contempt of court and may be prosecuted upon verified information or indictment and punished for contempt. Such person shall be tried by a court other than the one which has trial jurisdiction over the criminal proceeding to which the contempt charge relates.

7. Any person prosecuted under this statute shall have the right to a jury trial.

8. Upon enactment of this statute, no person shall be prosecuted for criminal contempts of court other than those specified herein. This section does not apply to contempts committed in the presence of the court nor to contempts which relate only to the integrity of the court or of individual justices.

Comments

Crimes Against Public Justice would be an addition to the current Canadian Criminal Code. The Statute is a substantially modified version of legislation proposed by the Massachusetts House of Representatives in 1965.(14) Its enactment would not require any changes in the present provisions of the Criminal Code. Because it is limited to contempts arising from prejudicial pretrial publicity, the common law treatment of other areas of contempt would continue as it has in the past under Criminal Code section 8. Our Statute would be inserted in the Code and numbered in the manner most appropriate to its context. The Criminal Code provision which deal with other aspects of contempt are not affected by this Statute and would continue in effect as they now appear.(15)

Comment, Section 1

This section details the persons to whom the statute applies, making it clear that members of both the news media and the legal apparatus are held accountable for information issuing from them and their employees.

By referring to a defendant’s “right to a fair and impartial trial”, the statute covers trials before a judge alone, as well as trials before a jury. Although the dangers arising from prejudicial pretrial publicity are more clearly apparent in the circumstances of a jury trial, we believe that they can exist as well when a single magistrate is hearing a case. A judge is after all human, and despite the cloak of impartiality he assumes with his judicial robes, there is no guarantee that persistent prejudicial publicity will not influence his decisions.

Comment, Section 2

This section describes the kinds of information which can no longer be divulged to the public during the pretrial and trial period. The descriptions are straightforward and require no further clarification. The list of prohibited information is drawn primarily from a list devised by the American Bar Association’s Advisory Committee on Fair Trial and Free Press and from the Massachusetts statute proposed in 1965.16

Justification for including the specific items lettered (a) through (g) lies in one, or both, of two assumptions: (1) the information may be inadmissible as evidence and thus should not be made public before a study of admissible evidence leads to a decision in a criminal case; and (2) the information relates to conclusions about the evidence which can legally be made only by the jury (or court) itself, and thus should not be made public until the jury (or court) has a chance to draw its own conclusions from the evidence as it is admitted during the trial.

Of necessity the Statute implies that the list of non-publishable information is equally relevant both before and during the trial. When the jury members have access to newspaper, radio and television, there is every reason to keep inadmissible information and conclusions from appearing in those media during the trial. In general the evidence as it appears in court may be reported, as this is a part of the public record which can be factually recorded for publication.

Subsection (g), however, prohibits reporting any events which happen during the time a jury has been excluded from the court. This follows naturally from the basic reasoning behind the whole Statute, i.e. that the jury shall decide the case only on those facts properly presented to it in court.

Comment, Section 3

This section is self-explanatory.

Comment, Section 4

This section describes the defences available to a person charged with violation of the Statute. Defences (a) and (b) are restatements of the defences of innocent publication and innocent distribution as they appear in British law (Administration of Justice Act (1960), 8 & 9 Eliz. 2, Ch. 65, sec. 11). The desirability of these defences was discussed in the Report preceding the draft statute.

Defence (c) makes clear what is still unclear in Canadian law, i.e. whether intent is a relevant consideration in a criminal contempt proceeding. Some commentators state clearly that intent is not an issue in a criminal contempt case involving pretrial publicity.17 A recent case of criminal contempt, however, discussed intent as if it were indeed relevant, and rejected the contention that “the intent or purpose… is immaterial, and contempt or no must be determined by the probably effect of what was done.”18

In principle we believe that the accused should have the right to show that his words bear some construction other than intent to prejudice a trial, and that they were not intended to bring about that result which could follow from them. For this reason we have included “intent” as one of the defences which the accused may seek to establish.

Comment, Section 5

This section codifies what has long been established in the law of criminal contempt as it relates to pretrial publicity, and needs no further clarification.19

Comment, Section 6

This section establishes the procedure for dealing with contempt charges under the Statute. It clearly provides that a contempt charge can no longer be handled summarily when it relates to pretrial publicity, but instead must be treated as any other criminal offense. This section removes contempt from its subsidiary position as a side issues in a pending criminal case, and elevates it to the proper status as an independent criminal offense to the be tried separately on its own evidence and merits.

There is excellent historical justification for treating contempt proceedings as all other criminal cases. In a set of beautifully scholarly articles for the Law Quarterly Review, Sir John Charles Fox establishes that in the fourteenth century, and later, contempts of a criminal nature committed out of court were tried in the ordinary courses of law, and not by summary process. This latter process, which has been inaccurately cited as based on immemorial usage, probably grew out of the jurisdiction of the Star Chamber to try cases without a jury.20

Our draft statute therefore suggests a return to the procedures by which constructive contempts were originally tried, and which has far more historic validity than the summary procedure which is currently sanctioned by our law.

The specifications in this section that the contempt trial court should not be the court offended by the alleged contempt has both practical and philosophical justification. It allows the original criminal trial itself to continue uninterrupted, for the trial judge need not even appear as a witness in the contempt case. It also clarifies the objective nature of the crime of contempt, and does away with the misgivings the public may have about a judge trying and punishing statements which might affect the justice rendered in his particular court. This, along with section 7, which allows a jury trial, reduces the arbitrary nature of the traditional contempt proceedings, and gives the proper legal significance to the crime of prejudicial pretrial publicity.

Comment, Section 7

The right to trial by jury was a part of the early constructive contempt procedures discussed in the articles by Sir John Charles Fox mentioned above. The common law courts did not claim jurisdiction to exercise a summary procedure in most constructive contempt proceedings until eighty years after the Star Chamber had ceased to exist. Thus we are suggesting a return to the original character of the criminal contempt proceeding by allowing a trial by jury. Such a return is philosophically, as well as historically justified:

…it is a strange doctrine which preaches that a traitor, a murderer, and one who incites the violent overthrow of a government is entitled to the time-honoured right of trial by jury, but that public policy demands that a printer or distributor who may not even have read the document for whose publication he is held responsible shall be deprived of the protection of a trial by his peers.21

Reasonable speed in punishing those guilty of interfering with due process is certainly desirable to deter others from doing likewise. But, as a Vancouver lawyer has pointed out, summary proceedings today are not much faster than jury trials, and there is no reason why a contempt of court indictments could not be brought before a jury within a matter of weeks.22

Comment, Section 8

This section makes it clear that our Statute is confined to contempts relating to prejudicial pretrial publicity. It also indicates that proceedings under the Statute are the sole means of dealing with contempt cases in that particular category.

We would like to note here that this report and Statute are part of a larger study of criminal contempt and criminal libel which is being carried on by the British Columbia Civil Liberties Association. When all aspects of the study are completed, other legislative proposals may emerge which will alter this one section to some degree.

Endnotes

1. Among scores of articles supporting this conclusion, we note especially “New Reflections on Fair Trial-Free Press: Sheppard v. Maxwell and the American Bar Association Proposals,” 1966 Univ. Ill. L.F., p. 1063.

2. Schmeiser, D.A., Civil Liberties in Canada, p. 222.

3. Our brief discussion of criminal contempt is drawn from the following sources, which we recommend as required reading for anyone seriously interested in studying criminal contempt in Canadian law:

McRuer, Hon. J.C., “Criminal Contempt of Court Procedure,” 30 Can. Bar Rev. 225 (1952); Shifrin, Leonard, “The Law of Constructive Contempt and the Freedom of the Press,” 14 Chitty’s L.J. 281 (1966); Ziegel, Jacob S., “Some Aspects of the Law of Contempt of Court in Canada, England and the United States,” 6 McGill Law Journal 229 (1959); and Annotation, 50 C.R. 165 (1966).

4. McReur, supra. note 3, at p. 226.

5. Id. at p. 227.

6. See Atty.-Gen. for Man. v. Winnipeg Free Press Pub. Co. Ltd. et al. (1965), 47 C.R. 48, at p. 51.

7. Shifrin, supra. note 3, cites the following cases to uphold this statement: R. v. Thomas re Globe Printing Co., 1952 C.R. 22, in which absence of knowledge of the trial was no defence to prosecution and R. v. Bryan, 1954 C. R. 255, in which a distributor of an American magazine was guilty of contemp although he had no knowledge of the contents of the offending issue.

8. Administration of Justice Act (1960), 8 & 9 Eliz. 2, ch. 65, section 11.

9. See the Canadian cases listed in the Bibliography.

10. See the studies discussed in “New Reflections on Fair Trial–Fair Press,” supra note 1, at p. 1073.

11. “New Reflections on Fair Trial-Fair Press,” supra, note 1, at p. 1080.

12. See Re Regina v. Thibodeau (1955), 23 C.R. 285.

13. It is clear that police officers, etc., must be included under the contempt law: see Steiner v. Toronto Star Ltd. (1955), 114 C.C.C. 117, at 119. They have probably been protected by the understandable reluctance of newsmen to reveal the source of their information. A clearer statement about the responsibility of court-related informers, however, may help to inhibit the “leaks” of prejudicial information that cause so much difficulty.

14. Recorded in Opinion of the Justices, (1965), 208 N.E. 2nd 240, at p. 214.

15. See Criminal Code section 9, dealing with appeals; section 514, dealing with disobedience of court orders; sections 457 and 612, dealing with punishment for contempt; sections 457, 610 and 612, dealing with contempt of witnesses.

16. The American Bar Association list is recorded in 1966 Univ. Ill. L.F. 1063, at p. 1075. The Massachusetts statute is recorded in supra., note 1.

17. Annotation, Contempt of Court—Publications Prejudicing Fair Trial (1965), 47 C. R. 52 and Schmeiser, D.A., Civil Liberties in Canada, p. 226

18. Regina v. United, Etc. (1967), 62 W.W.R. 65, at p. 74.

19. The following statement of the law on this point was made in 1931 by Lord Chief Justice Hewart, and recorded in Re Les Editions Maclean and Fulford(1965), 46 C.R. 185, at p. 187:

We think that it is of the utmost importance that it should be known that the fact, if fact it be, that statements to the detriment of an accused person are true affords not the slightest palliative or excuse for the publication of those statements before and with reference to the pending trial of that person for an offense.

20. See Fox, Sir John Charles, “The King v. Almon,” I and II, 24 Law Quarterly Review (1908), pp. 184 and 266; “The Summary Process to Punish Contempt,” I and II, 25 Law Quarterly Review (1909), pp. 238 and 354.

21. Ziegel, Jacob S., “Some Aspects of the Law of Contempt of Court in Canada, England and the United States,” 6 McGill L.J. (1959) 229, at p. 260.

22. Ibid.

Bibliography Cases:

  • Atty-Gen. for Man. v. Winnipeg Free Press Pub. Co. Ltd. et al (1965), 47 C. R. 48, and Annotation, at 52.
  • Bridges v. California, (1941), 314 U.S. 252.
  • Fortin v. Moscarella et al (1957), 23 W.W.R. 91
  • Hebert v. Atty.-Gen. for Quebec (1966), 50 C.R. 88, and Annotation at 165.
  • Opinion of the Justices (1965), 208 N.E. 2d 240.
  • Poje v. Atty.-Gen. of B.C. (1953), 17 C. R. 176.
  • Regina v. United, Etc. (1967), 62 W.W.R. 65
  • Re Regina v. Thibodeau et al (1955), 23 C.R. 285.
  • Re Les Editions Maclean and Fulford (1965), 46 C.R. 185.
  • Sheppard v. Maxwell (1966), 86 S.Ct. 1507.
  • Steiner v. Toronto Star Ld. (1955), 114 C.C.C. 117.

Books, articles and reports:

  • American Newspaper Publishers Association, Free Press and Fair Trial, Report of a Special Committee, 1967.
  • Cowen, Zelman, “Prejudicial Publicity…,” 41 Indiana Law Journal 69 (1965-66).
  • Fischer, Hugo, “Civil and Criminal Aspects of Contempt of Court,” 34 Canadian Bar Review 21 (1956).
  • Fox, Sir John Charles, “The King v. Almon,” I and II, 24 Law Quarterly Review, pp. 184 and 266 (1908); “The Summary Process to Punish Contempt,” I and II, 25 Law Quarterly Review, pp. 238 and 354 (1909).
  • Gillmor, Donald, Free Press and Fair Trial, Public Affairs Press, Washington, D.C., 1966.
  • Justice (British section of the International Commission of Jurists) and the British Committee of the International Press Institute, The Law and the Press, Report of a Joint Working Party, 1965.
  • McGuigan, James L., “Crime Reporting: The British and American Approaches,” 50 American Bar Association Journal 442 (1964).
  • McRuer, Hon. J.C., “Criminal Contempt of Court Procedure: A Protection to the Rights of the Individual,” 30 Canadian Bar Review 225 (1952).
  • Notes: “New Reflections on Fair Trial—Free Press: Sheppard v. Maxwell and the American Bar Association Proposals,” 1966 University of Illinois Law Forum (1966).
  • Schmeiser, D.A., Civil Liberties in Canada, Oxford University Press, 1964.
  • Shifrin, Leonard, “The Law of Constructive Contempt and the Freedom of the Press,” 14 Chitty’s Law Journal 281 (1966).
  • Ziegel, Jacob S., “Some Aspects of the Law of Contempt of Court in Canada, England and the United States,” 6 McGill Law Journal 229 (1959).