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Respecting the court

The cultural gap between Canada and the United States is painfully on display at the preliminary hearing of Robert Pickton, accused of being a serial killer, in Port Coquitlam, B.C. Some U.S. media organizations seem astounded by what they perceive to be the dictatorial powers of Canadian judges, and have not been inclined to follow the spirit of the law in this country.

A Seattle newspaper and several television stations whose Web sites are accessible to Canadians may have violated a ban on publication of evidence at the hearing. As well, The Associated Press, though it took some steps to minimize the spread of its story into Canada, received special attention from Provincial Court Judge David Stone yesterday. He put U.S. reporters on notice that they could be barred from the courtroom or even jailed for breaking the ban.

This is turning out to be an interesting test of U.S. deference to Canadian authority.

Under Canadian law, a publication ban on evidence at a preliminary hearing (a weighing of the state's case before a trial) is automatically applied if requested by an accused.

There is some sense to this. Originally, the hearing was the first chance an accused had to hear the evidence against him (or her). Without time to adequately prepare to challenge the evidence, an accused might be at a disadvantage if the evidence were spread widely by the media, and if prospective jurors were thereby prejudiced against him. Today, early disclosure of the state's case is required, but the possibility of prejudicing a trial remains; reports of a confession, for instance, could be damaging, and perhaps the confession would be ruled inadmissible at trial.

The closest counterpart in the U.S. is the grand jury, whose hearings are not at all transparent. In Canada, preliminary hearings are held in open courtrooms; accused persons attend with counsel and may challenge evidence. In the U.S., an accused may not even be informed of the proceedings. And it is a serious offence for a U.S. reporter to disclose what went on in a grand jury hearing. So the Americans have no reason to cluck-cluck about the Canadian system.

It is true that, generally speaking, the U.S. media have wide latitude in what they may report, both before and during a trial. To ensure a fair trial, the accused may conduct thorough probes of prospective jurors, and juries are generally sequestered at trials. The Canadian system avoids sequestration, and questions of jurors tend to be fairly cursory.

In sum, both the U.S. and Canadian systems seek to strike a balance between free speech and a fair trial, but they do so differently. While the danger of tainting an entire jury pool because of U.S. reporting seems small, the point is that the U.S. and Canadian media are equally obliged to respect the law. Judge Stone was right to insist on a little deference.

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