Gag Order Has Canadians Talking

A judge's ban on murder-trial coverage tests constitutional provisions on press freedom

CANADA'S press is locked in a pivotal battle with the Canadian judiciary over the public's right to know what happens in Canadian court cases.

An intense public debate in Canada has surfaced in the last two months over whether Canadian newspapers and television should be allowed to report the details of the July trial of a woman convicted in the torture and killings of two teenage girls.

Karla Homolka was sentenced to 12 years in prison for her part in two gruesome sex-related murders. That scant information is all 28 million Canadians know about the murder case - at least officially.

An Ontario judge banned all reporting of Ms. Homolka's trial, citing the need to protect the right of a second defendant, Homolka's husband, Paul Teale, to a fair trial. He is charged with the two murders and 43 counts of sex-related offenses. Homolka's teenage sister, who died after allegedly being drugged and raped by Homolka and Teale may have been an additional victim.

Rumor and speculation about the murders have become a leading topic of conversation across Canada, and the publication ban itself has intensified gossip and media interest worldwide.

Free-speech advocates and media lawyers are protesting the ban, pointing out that Mr. Teale's lawyers did not even request it. The Toronto Globe and Mail, Toronto Star, and other news organizations will argue to lift the ban at a Jan. 31 appeal hearing. If that fails, the ban will remain until Mr. Teale's trial concludes late next year or early 1995.

The ban is part of what appears to be a widening battle that includes everything from court-ordered publication bans to legislation outlawing the publication of election polls within 72 hours of an election.

Unlike the United States, Canada's tradition of freedom of the press has been a part of its Constitution only since 1982, when the Charter of Rights and Freedoms enunciated rights to free expression and a free press.

``There had been a trend toward publication bans and restrictions on the press,'' says Jamie Cameron, a free-speech expert at the University of Toronto's Osgoode Hall School of Law. ``One would have expected more, not less, freedom of speech since 1982. But my own perception is that exactly the opposite has happened.''

Canadian cable-TV operators last month dutifully blocked incoming US signals of ``A Current Affair,'' which carried details of the trial. Some Canadians received the show on satellite dishes. Computer bulletin boards at the University of Toronto that were exchanging details were shut down. Others continued. News leaks across border

In several editions this summer, the Toronto Globe and Mail printed short reports on its front page headlined: ``Another Story We Can't Report.''

Canadian news media so far are virtually all complying with the ban. US newspapers complied until recently. A weekly newspaper in Victoria, British Columbia, broke the ban earlier this month. But a flood of US-based news accounts full of prohibited details has gushed across the border in recent weeks.

The furor ballooned following a detailed account of the prohibited trial information printed Nov. 23 in the Washington Post. The article was reprinted in the Nov. 28 edition of the Buffalo (N.Y.) News, and many Canadians drove across the bridge to Buffalo for a copy or two to share.

The story went global when Canadian customs agents, acting on orders of the provincial attorney general's office, stopped Canadians returning across the border from Buffalo near Niagara Falls. Customs agents allowed one copy of the Buffalo News to each returning Canadian but confiscated all others. Niagara police reported 61 people detained and 187 papers seized, according to the Canadian Press.

Citing the ``futility of such orders in this age of computerization and electronic communication,'' Murray Light, editor of the Buffalo News, says he has spoken with reporters across Canada, from Ireland, the BBC, and a German news agency about the case. ``It's astonishing the scope of interest,'' he says. ``It's not the horrible murder, it's the gag order that provoked [the interest].''

Purportedly on behalf of free speech in Canada, a Buffalo radio disk jockey recently shouted portions of the Post account across the border over a megaphone.

``Our interest is in protecting the right to a fair trial,'' Barbara Krever, spokeswoman for the Ontario Ministry of the Attorney General says. ``This is a court-imposed ban, and we have a responsibility to enforce it. We took the position requesting the ban.''

But if authorities aren't amused by the ban's increasing leakiness, neither are free-speech advocates, who see a growing trend among Canadian judges to use gag orders and other bans - along with legislative moves by the federal and provincial governments to limit free speech. Bans on the increase

``The exercise of free speech is narrowing in Canada on a number of grounds,'' says William Thorsell, editor of the Globe and Mail. ``We're frustrated enough with the traditional trial publication bans. But several court judgments in the last year go beyond what I'm familiar with.''

He and others cite an Ontario judge's decision last December to prohibit the national broadcast of ``The Boys of St. Vincent,'' a drama about the sexual abuse of young boys at a fictitious Roman Catholic orphanage. The judge who invoked the ban was hearing a case in which charges similar to the drama were being weighed. But he also banned the press from reporting that there was a ban on the program. The program finally aired this month.

While many Canadians charge the media with a lust for lurid details and monetary motives in the Homolka case, public perceptions here could be changing.

In the small southern Ontario town of St. Catherine's, where many residents spent long hours searching for the missing girls, the question of whether justice was done in the Homolka case is a big reason for wanting the ban lifted. Many suspect that Homolka's sentence was reduced too much in exchange for her testimony in the coming case against Teale. She will reportedly be eligible for parole in four years.

These conflicts, Ms. Cameron says, show that Canada is still in a learning phase regarding the right to free speech and press freedom that won't be resolved for years, but which ultimately will be determined by public attitudes - and the stance the public takes toward court publication bans.

``This case has had a broader reach among the community than any other I've ever encountered,'' says Brian Rogers, past chairman of the Canadian Bar Association's Media and Communications Law section. ``People are questioning, many for the first time, `What's going on here? Why do we have this kind of ban?' ''

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