In the news: Publication Ban and the Presumption of Innocence

by Michael A. Johnston

Being accused of a criminal offence has many indelible and irreversible aspects. Often, a criminal defendant is tried and convicted in the courts of public opinion before he or she has even made a first appearance, let alone made full answer and defence. What is worse is that even if a person is acquitted by our courts of justice, the courts of public opinion have already imposed their sentence.

In Alberta, Justice Burrows of the Alberta Court of Queen's Bench - acting of his own volition and pursuant to that Court's inherent jurisdiction - recently shielded the identity of a defendant whom he found guilty of internet luring. This action was taken to protect the defendant from vigilantism.

Mr. Justice Burrow's decision raises concern for some, as it is being seen as undermining the open court concept, that it may be disrespectful to the victim, and detract from the nature and purpose of a criminal conviction. These concerns may have some legitimacy.

However, this decision should also call into question our systems need to at all times identify a defendant.

A publication ban for all defendants while they are still presumed innocent should be instituted. If a defendant is absolved by the courts of justice, that person  should not thereafter be required to have to make appeals about their reputation in the courts of public opinion. As Shakespeare wrote:

Good name in man and woman, dear my lord,
Is the immediate jewel of their souls.
Who steals my purse steals trash; 'tis something, nothing;
'Twas mine, 'tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.

Society is never the richer, nor the courts any more open, simply by knowing the name of a person who is ultimately not convicted.