The Justice System in the Media

I happened to be in court the day that Police Constable James Forcillo had his first appearance at Old City Hall last month. I walked past several members of the media covering the story and watched them interview his lawyer briefly after the appearance was over. He’d been arrested just hours before and yet everyone seemed to know  that he’d be there that morning.

I was also there when Justice Trotter of the Superior Court of Justice released him on bail and granted his lawyer’s request for a publication ban on the evidence in the case later that same day. Nonetheless, much of the day’s events played out on the news for the next little while.

PC Forcillo’s circumstances are somewhat unique. Most of the time that people are brought before the courts, they go more or less unnoticed by the general public. It’s generally not a secret that you’ve been charged but there also aren’t generally a dozen reporters surrounding every accused that goes through the justice system. Courts are open to the public because one of the important aspects of our justice system is that justice appear to be done – that it be visibly carried out. The academic argument for this boils down to accountability: the public should be able to see that the justice system is doing its job (and, by extension, that it is doing so properly).

It gets complicated, though, with these rare cases that are widely publicized from the very beginning. I’m talking about before any evidence has been presented in trial and well before any finding of guilt has actually, officially been made. The presumption of innocence applies to everyone who stands accused of an offence but with these “water-cooler” cases, there’s a question there as to whether or not that’s truly being respected.

Christie Blatchford recently wrote an article for the National Post reflecting on this issue. In it, she discusses a reader’s reaction to an earlier piece she’d written about two men who had been charged with sexual assault. Ms. Blatchford realized, on the eve of their expected acquittal, that she (and other reporters like her) had played a big part in making the names of these accused (together with the crime they were charged with) well-known to the public. She had, as she admits in her second article, soiled their names and reputations in doing so, and this is again well before any findings of guilt were made (in fact, both men were eventually acquitted).

She then goes on to point out that the general practice with complainants and witnesses in these sorts of cases is to provide for their anonymity, to spare them of any further hardship or embarrassment. These sorts of publication bans aren’t as common for the accuseds in these matters, mostly stemming from the goal of transparency in the criminal justice process.

She concludes by saying that she now believes that it’s the responsibility of journalists covering these cases to try to self-censor in publishing the names of merely-accused persons. To her credit, she does not mention the names of the accused individuals in this article at all and does not herself link back to her earlier article (though whether the Post agrees with her is up for debate – they link to the original article in the Related Articles section right in the middle of her article).

While it’s refreshing to read Ms. Blatchford’s frank piece about the unintended consequences of coverage of in-progress criminal proceedings, I don’t think that’s the entirety of the problem. Even if reporters self-censored as she suggested (which she admits is unlikely, and she herself has already broken that promise since then), the problem would remain that the police are also all-too-willing to publish the names of suspects in their own press releases. In fact, that’s likely where reporters get the names in the first place. This practice is already enough to start soiling the reputations of suspected individuals based on allegations. It’s reasonable to assume that police do so intentionally – as an investigative technique to aid in tracking people down.  I’ve also at times heard the argument that this pseudo-”shaming” process is part of what contributes to the deterrent effect of the justice system – that the pre-trial harm to reputation is more of a feature and less a glitch in the system.

The question is, then, whether we consider the publicizing of suspects’ names prior to determinations of guilt to be a necessary part (or perhaps just an unintended consequence) of our criminal justice system, or if it amounts to an unjust denial of the right to be presumed innocent.

This blog post was written by Ricardo Golec.  Ricardo is an articling student working for Adam Goodman.

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