This post original appeared in The Lawyer's Daily.
On Sept. 23, Toronto Mayor John Tory published his comments on an accused receiving bail in a case involving murder charges involving a Toronto police officer. Tory also expressed dissatisfaction regarding the publication ban over the bail proceedings.
Bail proceedings are an essential element of the criminal justice system. While they are not perfect, the Charter guarantees the right that any person charged with an offence has the right not be denied reasonable bail without just cause. This Charter provision applies to every single offence under the Criminal Code without exceptions. For lay-persons of the public, bail is often confused with outcome of trial and sometimes, the public wrongly presumes that laying of charges means that someone is guilty. By extension, if you are charged, you are guilty.
A reminder here is necessary: It is the Crown’s burden to prove each and every element of an offence. And yes, sometimes publication bans are obtained in bail proceedings to protect the integrity of the proceedings including the accused’s right to a fair trial. In this instance, the lawyer(s) for the accused publicly stated to the media that a variation on the publication ban is being sought to help shed light on the reasons. This is commendable for ensuring the public understands, a difficult decision but also protecting the administration of justice.
Mayor Tory, in this instance, however, is also a non-practising lawyer with the Law Society of Ontario.
All licensees must comply with the Rules of Professional Conduct including making public statements in communication with the public that respect and uphold the administration of justice.
Mayor Tory’s comments wade into matters in which he is not in a position comment when the public does not have the benefit of reviewing the reasons. It is not clear if Mayor Tory reviewed those reasons or is aware of those reasons as a member of the Toronto Police Services Board (TPS).
Publicly condemning reasons for a decision without a basis, including publicly available reasons is likely to violate the right to a fair trial and likely to also violate the Rules of Professional Conduct, namely, the interference with right to a fair trial or hearing.
A lawyer shall not communicate information to the media or make public statements about a matter before a tribunal if the lawyer knows or ought to know that the information or statement will have a substantial likelihood of materially prejudicing a party's right to a fair trial or hearing.
While Tory plays a dual role as a mayor and TPS board member, he is also a licensee where the Rules of Professional Conduct apply to his actions. I struggle to see the benefit of Mayor Tory and Premier Doug Ford both publicly commenting on this proceeding as their comments will have likely prejudiced the proceedings. While they have a right to share concern around protection of the public, they seem to have little to no concern for their inappropriate public statements made before any reasons are available or before the conclusion of the matter.