 |
| 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and shall, if application is made by the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as the accused is either discharged, or if ordered to stand trial, the trial is ended.
If the accused is not represented by counsel at the preliminary inquiry, the Justice holding the inquiry must inform the accused of his right to make an application under subsection (1) prior to receiving any evidence on the preliminary inquiry that the evidence at the preliminary inquiry will be banned from publication upon his request.
This subsection ensures a fair trial for the accused as guaranteed by ss. 11(d) of the Charter and does not constitute an unconstitutional infringement on the guarantee to freedom of the press as guaranteed by subsection. 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.
Subscribe to Patrick Ducharme's Youtube Channel