section 539(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows for orders to be made to prevent the publication or transmission of evidence taken during a preliminary inquiry until the accused is discharged or the trial is ended.

SECTION WORDING

539(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry (a) may, if application therefor is made by the prosecutor, and (b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused, (c) he or she is discharged, or (d) if he or she is ordered to stand trial, the trial is ended.

EXPLANATION

Section 539(1) of the Criminal Code of Canada pertains to the conduct of preliminary inquiries in criminal cases. A preliminary inquiry serves the purpose of determining whether the Crown has sufficient evidence to put the accused person on trial for a criminal offence. At the outset of the inquiry, the presiding justice has the power to issue an order preventing the publication or transmission of any evidence presented during the inquiry. This order can be requested by the prosecutor or any of the accused. The purpose of the order is to protect the integrity of the trial process by preventing the evidence from being disclosed to potential jurors or the media prior to the trial. The order will remain in effect until either the accused is discharged, or the trial is concluded. By ensuring that the evidence presented at the preliminary inquiry is not disclosed prematurely, this provision recognizes the importance of protecting the rights of the accused and the integrity of the criminal justice system. This section of the Criminal Code of Canada serves as a safeguard to protect the fairness of the trial process by preserving the impartiality of potential jurors and ensuring that evidence is not prejudged by the public before it is presented in court.

COMMENTARY

Section 539(1) of the Criminal Code of Canada grants the presiding justice of a preliminary inquiry the power to restrict the publication of evidence obtained during the inquiry. This provision is designed to protect the fairness of a trial by ensuring that potential jurors are not exposed to information that may prejudice their ability to weigh the evidence impartially. The provision also seeks to protect the reputation and privacy interests of accused persons who may not ultimately be convicted of any crime. The provision is not a blanket prohibition on the publication of evidence, but rather allows for the imposition of a limited ban that ends once the accused is discharged or the trial ends. The decision to impose a publication ban rests with the presiding justice and may be made either at the request of the prosecutor or an accused person. The standards for granting an order for a publication ban are generally high, as courts are mindful of the importance of free expression and open court proceedings. However, where the publication of evidence may pose a significant risk of prejudice or harm to the accused, the justice may decide to impose a ban. Publication bans may cover not only traditional print and broadcast media but also social media and other forms of online communication. Courts have struggled to police the enforcement of such injunctions in the digital age, and there are concerns that even well-intentioned restrictions may be easily circumvented by determined individuals. Critics of publication bans argue that they have a chilling effect on the freedom of the press and that they are often overused in cases where their justification is weak. In some cases, publication bans may serve to protect powerful individuals or organizations from scrutiny or may silence legitimate criticism of the justice system. On the other hand, supporters of publication bans point to their importance in ensuring a fair trial for accused persons who may be vulnerable to prejudicial media coverage. They note that prejudicial media coverage may lead to wrongful convictions and undermine public confidence in the justice system. Overall, section 539(1) of the Criminal Code of Canada is a powerful tool in the hands of presiding justices who are charged with ensuring fair and impartial proceedings. However, the imposition of publication bans must be done judiciously, with a keen eye to protecting the integrity of the justice system while also preserving the public's right to know.

STRATEGY

When dealing with section 539(1) of the Criminal Code of Canada, both the prosecution and defense have strategic considerations to take into account. This section deals with the possibility of a publication ban being put in place during a preliminary inquiry, which can have implications for the way evidence is presented and the public perception of the case. For the prosecution, one strategy may be to apply for a publication ban in cases where sensitive information needs to be kept out of the public eye. This could include details of the victim's identity or medical information, or information that could prejudice future jury selection. By applying for a ban, the prosecution can ensure that important evidence is not jeopardized by media coverage or public discussion. Another strategic consideration for the prosecution is the possibility of a tactical decision to waive the right to a publication ban. This may be done in cases where the evidence is strong and the prosecution believes that public discussion of the case may lead to a stronger public perception of the evidence. By allowing the details of the case to be made public, the prosecution can build momentum and increase public awareness of the charges. On the defense side, the most common reason for requesting a publication ban is to protect the reputation of the accused. If the case receives significant media attention, it could make it difficult for the accused to find a fair trial in the future. Additionally, a high-profile case could have lasting effects on the accused's personal and professional life, even if they are ultimately acquitted. A strategic consideration for the defense is whether or not to file a request for a publication ban. In some cases, the defense may believe that public perception of the case could be beneficial to their client. For example, if the accused is known to be well-liked in their community, public support could help to sway jury members in their favor. Alternatively, if the accused has a negative public perception, the defense may benefit from trying to keep their case out of the public eye. Ultimately, both the prosecution and defense must carefully consider the potential outcomes of a decision to apply for or waive a publication ban. By understanding the implications of this section of the Criminal Code, legal teams can make strategic decisions that will best serve their clients and ensure a fair trial.