Bail (show cause) hearings
Section 517 (1)
Rationale and Scope: Section 517(1) authorizes a sweeping ban on the contents of a hearing to
determine whether an accused person should be free from custody while awaiting trial. While a
judge can turn down a prosecutor’s request for a ban in these situations, she must impose one if
the accused requests it.
If granted, the ban covers the evidence and information presented and the arguments of the prosecutor
and defence lawyer. It even extends to the judge’s reasons for or against granting bail, since these
revolve around whether the accused will flee if released or must be kept in jail to protect witnesses
and other members of the public. Courts have ruled that the fact a hearing is held, whether bail is
granted or denied, and the amount of money posted or other conditions of the defendant’s release
can be published, without violating the ban.
When imposed:The ban can be imposed “before or at any time during” the hearing – a unique
provision, since other bans must be sought before proceedings begin.The ban can also be imposed
on hearings to review a judge’s order to grant or deny bail; applications to vary the terms of bail;
hearings into violations of bail conditions; and reviews of detention orders.
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Duration: Such a ban is temporary, remaining in force only until the accused is discharged (has all
charges dismissed after a preliminary hearing) or the trial has ended (with a guilty plea or a verdict at
trial). Once the need to protect the right to a fair trial evaporates, the media can report everything
said at the hearing.
Preliminary hearings / inquiries
Section 539 (1)
Rationale and Scope:Where serious criminal charges have been filed, a preliminary hearing
(also known as a preliminary inquiry) is held in provincial court to determine whether there is
enough evidence to justify sending the accused for trial. Since the purpose of a preliminary inquiry
is to determine whether the Crown has a prima facie case (rather than to also hear evidence the
defence may present to rebut the Crown’s case), the hearing often doesn’t provide a balanced picture
of the evidence.To prevent the airing of potentially distorted and prejudicial information, the judge
presiding at a preliminary hearing has the power to ban publication of “the evidence taken” at the
proceeding. Again, the order is mandatory if sought by the defendant but the judge can refuse a
prosecution request.
The ban specifies “evidence” – that is, the testimony of witnesses and any information contained in
documents tendered as exhibits. But it isn’t as sweeping as the restriction on reporting on bail hearings,
so the media can report procedural matters, legal arguments and other courtroom statements that
do not disclose evidence.
When sought:The order must be sought “prior to the commencement of the taking of evidence.”
Duration:The ban expires once an accused is discharged or the trial is ended. Media outlets
sometimes staff preliminary hearings in high-profile cases in the event the accused is discharged or
later pleads guilty. If the case proceeds to trial, much of the evidence heard at the preliminary hearing
will be repeated at trial, when it becomes publishable. A written transcript of the evidence, obtained
from the court file or from counsel, may contain newsworthy evidence that is publishable once the
ban expires at the end of the trial.