Premier David Eby's recent call to lift a publication ban in a case involving the accused killer of a Surrey woman has raised questions concerning political interference with the justice system.
addressed the issue of a publication ban on a bail hearing concerning Adam Mann, the man accused of second-degree murder in the death of Tori Dunn.
Mann is currently in court on three unrelated charges. None of these charges have been proven in court, and a publication ban currently covers the details of the charges. Mann's counsel applied for a publication ban on June 28, 2024.
Eby said he had spoken with the Attorney General's team and that the Prosecution Service would be seeking clarification from the court, "ensuring that the publication ban does not apply to that bail hearing so that we can all know what happened in that courtroom."
"'I'm very hopeful, and my expectation is that the prosecutors will be successful in getting that information released," Eby said at the time.
Publication ban is mandatory
But lifting a publication ban isn't quite that simple.
"As this was an application by the accused, it is a mandatory order," Damienne Darby, communications counsel for the BC Prosecution Service, explained.
The evidence and information presented during bail hearings. Judge Andrea Davis signed off on an updated publication ban on July 19, 2024, in Surrey provincial court. The updated order includes further direction on what cannot be published, broadcast, or transmitted until a preliminary inquiry is held, the accused is discharged, the accused is tried or ordered to stand trial, or the trial ends.
"Section 517 publication bans are very common and are an important tool in our justice system to protect trial fairness and the integrity of prosecutions," Darby said.
Darby said there had been no changes to the publication ban since July 19, 2024.
"The BCPS (BC Prosecution Service) is assessing whether there is any ongoing ambiguity regarding the scope of the publication ban that could benefit from clarification by the court," Darby said on July 26.
After a followup inquiry by the Surrey Now-Leader Tuesday (July 30), the Prosecution Service said there was "no new information" about the case.
"We are still assessing whether there is any ongoing ambiguity regarding the scope of the publication ban that could benefit from clarification by the court," it said in a statement on Tuesday afternoon.
The Now-Leader has also reached out to the Attorney General's office for comment but has not yet heard back.
Courts need to be 'impartial': lawyer
Molly Shamess, a criminal defence lawyer, said it's important to note that judges, not the Prosecution Service, change publication bans.
Shamess has some concerns about Eby's comments.
"I think there's a way to express your response to this, obviously, very tragic set of circumstances and public concerns that are raised about what went on at this hearing for the individual who is still presumed innocent, I would add," Shamess said.
"I think there are ways to speak to those concerns without interfering in the impartial work that the Prosecution Service and the courts need to be allowed to do."
"There are very important reasons that the courts and the Prosecution Service are removed from the political arena," Shamess added. "The last thing any of us wants is for political concerns to impact prosecutorial or court decisions because sometimes the work all of us have to do is potentially unpopular but ultimately correct."
What are publication bans?
"There's a difference between bans on publishing something and bans on access to information or learning certain information," Shamess said.
Courtrooms are open to the public except in rare cases when a judge decides otherwise. Shamess said that 99 per cent of the time, any member of the public can go to court and listen to a bail hearing or trial.
"Publication bans are, again, about the publication of that information after the fact," Shamess said. "You could have total access to the proceedings, if you're there listening and seeing what's happening, but not be allowed to, again, broadcast, put online."
Publication bans, such as the current one in place, are intended to ensure a fair trial. They ensure any information or evidence presented during the bail hearing is not made public and "then maybe accidentally taint the future jury pool," Shamess said.
She noted that the rules of evidence around a bail hearing are "extremely relaxed" compared to a trial.
"So that's the other thing; it's untested information, it's often a summary of a summary of a summary. We're not hearing very often a live witness because they're being asked questions and cross-examined, it's untested and untestable information, because bail hearings need to happen quickly and early on, right for everybody's benefit," Shamess said.
"The truth, at the end of the day, a lot of the information that the bail hearing is about is the accused person sa国际传媒� very, very specific circumstances, their character, their very personal information, their living situation, their health, their own history of being a victim, their financial information, those same topics about their families, their loved ones, the people around them, information that is extremely private and that really impacts someone's individual dignity," Shamess said.
She said the judge needs to hear this information to understand their circumstances, and the accused needs to feel free to share that information without the fear of it being made public.
Access to information still possible
"There are some limits we have to put on the type of information that can be published, broadcast, and disseminated right from that very early stage where we're talking about stuff that may or may not be true and also may or may not be relevant to the ultimate question at the end of the day," Shamess said.
"But there's nothing stopping somebody from going to court and watching any bail hearing happen on any day, and there's nothing stopping somebody from going to the courthouse and asking to listen to the audio recording," Shamess added.
In cases where there is a publication ban, the court registry will tell the individual that they need to talk to a judge to determine how much access they will get, Shamess said. The individual will be asked by the judge why they want to hear the information and what they plan on doing with it.
"Access is always possible. It's just not necessarily like snap of the fingers, automatic, on-demand, without a little bit of a step in between to make sure that all the interests that a publication ban is supposed to protect are protected in that particular situation."
"But it's not a black box; it's not anyone trying to hide anything or prevent anyone's access," Shamess said. "There's nothing kind of intentionally secretive about it."
