🚀 go-pugleaf

In article <1994Mar19.190204.567@sdg.dra.com> sean@sdg.dra.com writes:
>From: sean@sdg.dra.com
>Subject: Re: WiReD: just bad journalism re: Homolka info on Internet
>Date: 19 Mar 94 19:02:04 CST

>> There is no precedent for gag orders between
>> countries ... and won't be short of negotiating treaties.  

Actually there is.  In the 1950's or 60's an American was tried and
convicted for violating a publication ban in a Canadian court.  It was a 
slightly different sort of ban, but nevertheless an American was tried and 
convicted in absentia and then extradited as a convicted criminal to
serve time in a Canadian jail.

It was no big deal in human terms -- the sentence was only 11 or 12 days, 
but it's interesting from a legal perspective.

The mistake made by the defendants in this case was that they were dumb 
enough to send a laywer to represent them before the court.  Because they 
were represented before the court they were "attourned" to the court, and 
therefore the verdict was valid.  If they had not bothered to send a laywer 
the court could not have convicted them and the extradition would not have 
been possible (at least not on the same grounds).

I can't remember the names and the dates anymore but with enough work I 
could find out again.  An account of the trial was published in the 
Globe & Mail (Canadian newspaper) a few months ago when the current ban was 
a big news item.  

The interesting question is this:  What is necessary for a party to be 
attourned to the court?  Most major US media have fairly extensive offices 
in Canada -- would a senior official from one of those offices be a person 
of enough standing to attourn the American wing of the organization to the 
court?  If so, since they are in Canada the court could force them to appear 
and perhaps use them to attourn the whole organization.

Even if this sort of thing turns out not to be possible the court can
enforce all kinds of contempt rulings on any member of the organization that 
ventured into Canada -- perhaps even against any member of the organization 
that ventured into any commonwealth country (Australia, Britain, Canada...)

That could certainly cause serious financial trouble for any organization
that wanted to report on world events.


>What I found especially amusing, was the claim by the Canadian Crown
>prosecutor that the press had no standing to challenge the ban, but they
>were still bound to obey it.  I found this a rather novel legal concept.

I find this somewhat offensive.  It's hardly a "novel legal concept" --
in fact it is a legal concept that predates America, or even knowledge
of North America.  Inherent in your statement is the attitude:  "The 
American legal system is the first and only legal system of any value.  
If you do anything different than we do in America it's just no good."

There is no sensible way the Canadian and American legal systems can be 
compared.  They have a completely different constitutional basis, and serve 
completely different functions within society. 

With respect to the publication ban probably the most important difference 
is that in the Canadian legal system we don't lock up the jury as if they 
were prisoners.  They're free to go home to their families at the end of the 
day and watch TV.  They can even continue working at their job as long as 
they show up in court when they're supposed to.

Given that we don't treat our juries as criminals we have to worry a lot 
more that they don't get biased by news reports.  In sensitive trials in 
America the jury is locked away and not allowed any contact with the outside 
world -- so you can afford not to care what the newspapers do.  But in 
Canada the jury deciding over the fate of the accused can and will see and 
read anything that is published about the case.  If there is some 
information that would seriously bias the case, then it makes sense to ban 
it in order to protect the rights of the accused.


Justin Wells
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