Presented at the University of Waterloo Symposium,
"Free Speech and Privacy in the Information Age"
Dov Wisebrod, November 1994
Why has the Ontario Court of Justice violated its own publication ban?
Shocked? So was I. The publication ban in question is the one ordered by the Court in the prosecution of Karla Homolka. After television broadcasts were blocked, the importation of American publications was restricted, and Usenet newsgroups (Internet bulletin boards) were banned, the same court that ordered the ban has violated it.
The violation involves a judgement rendered on May 10, 1994, relating to the prosecution of Paul Bernardo Teale.1 The judgement includes details of Karla Homolka's plea--information that the ban prohibits from being published. The court order expressly permits the publication of only "Whether a conviction was registered, but not the plea."2 It further stipulates that the plea may not be published "until the completion of the trial of Paul Bernardo Teale."
Yet, on May 10, Mr. Justice Lesage rendered a judgement in the course of the dragging prosecution of Paul Bernardo Teale that disclosed the nature of Karla Homolka's plea. (At issue in the judgement was whether the accused could have information relating to the plea negotiations between Karla Homolka and Crown prosecutors. This information has potential use in attacking the credibility of Karla Homolka, a prime witness for the prosecution.) While the plea has not been one of the most sought after pieces of banned information, the efforts made to prevent it from becoming common knowledge were significant. For example, the April 1994 issue of Wired magazine, an American publication, was pulled from newsstands because an article it contained revealed the plea.3
What's going on? The answer is that the court became a victim of its own ignorance of the Internet Age. We live in an era characterized by global electronic interconnectivity. The Internet has greatly increased the transparency of national boundaries to electronic communication, and has facilitated free transmission and retrieval of information throughout the world. Information on the Internet is available to anyone, anywhere.
Mr. Justice Kovacs, who ordered the publication ban on July 5, 1993, apparently was unaware of the truly free nature of information in the Internet Age. He was not the only one. The R.C.M.P. thought that banning Usenet newsgroups with names like alt.fan.karla-homolka, alt.pub-ban, and alt.pub-ban.homolka, would stem the flow of banned information. Both the judge and the enforcement authorities were wrong. The information survived in the alt.true-crime newsgroup, demonstrating the truth of John Gilmore's statement: "The Net interprets censorship as damage and routes around it." Further efforts to enforce the ban similarly failed due to the ubiquity of the Internet. The confiscation of Wired, for example, was irrelevant to the availability of the information it contained because every issue of the magazine is available on the Internet.
In the Wired article, it was estimated that one quarter of the Canadian population knows the banned details. It may be inferred quite reasonably that any item of information known by this many people could not possibly have been banned. It is easy to forget what is banned, and what is not, when both classes of information are widely known and discussed. I suggest that the explanation for the Court's violation of its own publication ban is that it failed to refer to the text of the ban, and without that reference it was unable to discern that the information it revealed was banned. Too many people already knew Karla Homolka's plea. The Ontario Court of Justice misjudged the extent to which it was capable of controlling access to information, and it ended up a victim of its own poor judgement.
One would think that once included in an unrestricted judicial decision a statement may be published elsewhere. However, since it is the information that is banned regardless of the source from which that information has been learned, such is likely not the case. Whether its source is the Washington Post, alt.fan.karla-homolka, or a judge, the information may not be published.
The situation is absurd. The following statement is taken directly from the judgement of Mr. Justice Lesage, but its complete publication is not permitted:
To put it in its simplest terms, the proposed witness, Karla Homolka, entered a plea of __________ to manslaughter regarding her participation in the crimes for which the accused is charged with first degree murder and has agreed to be a witness for the Crown in the prosecution against the accused Bernardo.
To avoid violating the ban, one word has been removed. Of course, you know what it is.
1 R. v. Bernardo,  O.J. No. 1718 (QL) (Ont. Ct. Jus. Gen. Div.).
2 R. v. Bernardo,  O.J. No. 2047 (QL) (Ont. Ct. Jus. Gen. Div.).
3 Anita Susan Brenner and B. Metson, "Paul and Karla Hit the Net," April 1994 Wired (2.04) 28.