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| Patrick Ducharme |
Prior to the commencement of the taking of evidence at a preliminary inquiry, the Justice holding the inquiry may, if application is made by the prosecutor, and shall, if application is made by the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as the accused is either discharged, or if ordered to stand trial, the trial is ended.
This subsection ensures a fair trial for the accused as guaranteed by section 11(d) of the Charter and does not constitute an unconstitutional infringement on the guarantee to freedom of the press as guaranteed by section 2(b) of the Charter. One Quebec decision suggests counsel ought to make the request for the publication ban at the outset of the inquiry because if it is made during the course of the preliminary inquiry the Justice has discretion not to make the order, although one might question the validity of this decision.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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