It’s not easy to write a story about a legal matter when the judge imposes a publication ban. But in an article in today’s Toronto Star, legal affairs reporter Tracey Tyler managed to say a lot despite being allowed to say next to nothing.
The front-page story, headlined ‘The criminal case we can’t tell you about,’ details the case of an Ontario lawyer who was convicted of possessing child pornography and granted permission by the Law Society of Upper Canada to resign, reportedly the first time this has ever happened in Ontario, she notes.
“But because of a publication ban imposed by a judge in his criminal case in Brampton in December 2009, there is almost nothing more you can know. We can’t tell you why the ban was imposed in the Ontario Court of Justice, who asked for it or whether there was opposition. We can’t tell you whether Justice Louise Botham wrestled with whether to take the drastic step of shrouding the case in secrecy.
“We can tell you courts are meant to be open and this kind of ban is extraordinary. But we can’t tell you whether Justice Botham followed principles the Supreme Court of Canada has told judges to consider when confronted with a request to ban publication. We can’t tell you whether the judge insisted on seeing evidence that a ban was necessary to ensure the fairness of a trial and whether that justified infringing on freedom of expression.”
Despite the disciplinary hearing having taken place in public, Tyler notes, “the media can’t say what transpired.”
The Star does go so far as to publish the lawyer’s name, “only because the [Law Society of Upper Canada] included his name on its website when he resigned from the profession.” [Click here to find out who it is.]
Tyler says she contacted Justice Botham and asked if there was further documentation that could explain the reason for the ban and what it covers. The judge was “quick to respond and tried to help, but said she strongly suspects what is contained in the transcript of the court proceedings ‘is all there is.'”
“I remember the case but don’t even remember making the ban,” she told the Star. “I’ll get a copy of the transcript and see if that refreshes my memory… let me take a look.”
The Star notes that this case stands in contrast to a similar one last year in Manitoba, when another lawyer, Gary Dolovich, pleaded guilty to possession and distribution of child pornography and was disbarred. “…in keeping with a Law Society of Manitoba rule,” Tyler wrote, “that panel ordered that its decision to disbar Dolovich be published.”