The Supreme Court of Canada gave judgment yesterday in the case of Toronto Star v Canada (2010 SCC 21) upholding section 517 of the Criminal Code, a federal law that bans the media from reporting evidence from bail hearings. The ban is discretionary if the application is made by the prosecution and mandatory if the application is made by the defence. The case arose in the context of two high profile cases — a murder case in Alberta and an Ontario case involving terrorism‑related offences — in which there had been a ban on reporting the bail hearings.
A number of media organizations challenged the constitutionality of the mandatory aspect of the publication bans, contending the provision is an unjustifiable violation of freedom of expression. The Court held (8:1) that while the statutory mandatory publication ban limited freedom of expression, that limit could be justified in a free and democratic society.
In giving judgment for the majority, Justice Marie Deschamps accepted that
“the deleterious effects of a publication ban should not be downplayed. Section 517 bars the media from informing the population on matters of interest which could otherwise be subject more widely to public debate: Edmonton Journal v. Alberta (Attorney General),  2 S.C.R. 1326. To this extent, it impairs “[t]he freedom of individuals to discuss information about the institutions of government, [and] their policies and practices” ” 
Nevertheless, she found that, on balance
“in the context of the bail process, the deleterious effects of the limits on the publication of information are outweighed by the need to ensure certainty and timeliness, to conserve resources, and to avert the disclosure of untested prejudicial information; in other words, to guarantee as much as possible trial fairness and fair access to bail. Although not a perfect outcome, the mandatory ban represents a reasonable compromise”. 
In her dissenting judgment, Justice Abella took the view that
“the salutary effects of the ban [were] … not proportional to the harmful effects flowing from the infringement of the open court principle” 
The decision provides a useful overview of the Canadian case law in relation to open justice and reporting restrictions and an illustration of the way in which Canadian courts operate “the Oakes test” of proportionality.
The “Factums” (that is, Skeleton Arguments) in the case and the Webcast of the hearing are not presently available.
The decision has been heavily criticised by the Canadian media who regard it as a serious setback for the principle of open justice. The Toronto Star suggested that the ruling could undermine confidence in the justice system. The Montreal Gazette quotes the lawyer for the Canadia Newspaper Association, Dan Burnett, as saying
“I think it’s quite a clash with the pretty proud tradition of the Supreme Court’s rulings on publication bans, which have moved us from a state where they were ordered quite easily 20 years ago to a point where it requires a threat to the administration of justice in order to justify one”
[Update] The case is now the subject of a post on “The Court” the useful and informative blog devoted to the Canadian Supreme Court. The post, by senior contributing editor Christine Kellowan, is highly critical of the decision of the majority and concludes as follows
“the decision in Toronto Star Newspapers Inc. is somewhat unsatisfying for those of us that value both the rights of the accused and the freedom of speech. A more satisfying outcome would have been a more narrow reading of s. 517. In the future, the courts should try to limit the scope of s. 517 so that mandatory publication bans account for the mode of trial and circumstances”.