It’s OK! I’m with the ban | Marcel Strigberger

Marcel Strigberger

Once upon a time there was a ... Hold it. Shhh! Publication ban. No comments allowed.

An exclusive study by the National Post notes that there has been a substantial increase in the request for discretionary publication bans of court proceedings. We are talking not only about criminal but civil as well, where the issue is not only revealing identity but also disclosing corporate or family financial or other information. The media complain that these bans violate open court principles, attacking hallmarks of democracy. They lament that they do not have the resources to challenge all of these requests.

I have some concerns about these bans. I wonder how some classic tales, children’s and otherwise, might have unfolded had there been restrictions in fact reporting.

The Wizard of Oz

We have a publication ban in place preventing disclosure of the cause of death of the Wicked Witch of the East. There is an application to the court for disclosure of the coroner’s report, by the local newspaper, The Munchkin Daily. The court allows limited disclosure, enabling the paper to only state, “The witch is not only merely dead but also most sincerely dead.” The newspaper is appealing. So is the little dog, Toto. Toto too.

 Goldilocks and the Three Bears

The three bears are suing Goldilocks for damages for trespass. Goldilocks obtains a publication ban prohibiting disclosure of the allegations of the alleged tort. Papa Bear, on behalf of the plaintiffs is livid, telling reporters “We prepare breakfast, then go for a walk while the cereal cools off and wham. We get ransacked. I can’t tell you much more about what she did except that we had to get Baby Bear a new chair from Leon’s.”

Jack and the Beanstalk

The giant comes to after falling off the beanstalk Jack chopped down, and he files a claim against the perpetrator. Jack’s lawyers get a court order banning identity disclosure. The media intervene and the court is firm, prohibiting anybody from saying anything which might in any way disclose Jack’s identity. A journalist apparently steps over the line, and he gets charged with contempt for saying “Fee-fi-fo-fum.” 

Pinocchio

It is a little-known fact that Pinocchio had a nose job. It is not too successful. There are side effects which compromise his credibility. He brings a malpractice action against the plastic surgeon. The doctor claims Pinocchio is the author of his own misfortune as he made a deal with some fairy to behave like a good little boy failing which there would be consequences. Pinocchio denies these allegations and seeks and obtains a publication ban limiting to what extent the media could report on the trial evidence. The ban bars anybody in attendance in court from disseminating any information when Pinocchio is in the witness stand, about the progressive growth of his nose.

Snow White

The magic mirror tells the wicked queen that Snow White is the fairest of them all. Given the queen’s jealousy, Snow White, fearing retribution, flees and hides out in the forest at the house of the seven dwarfs. She then sues the queen for constructive dismissal. Only the mirror knows Snow White’s whereabouts, and it is prepared blab and to tell all to the public. Snow White and the dwarfs are successful in getting a publication ban against the mirror from divulging their location. To ensure anonymity the court records do not name the dwarfs per se, only reading, “Snow White and the Group of Seven.”

Alice in Wonderland

Alice brings an action against the White Rabbit for enticing her to follow him into the cave resulting in her tumble down the hole into Wonderland. She seeks a total discretionary publication ban claiming disclosure of the circumstances would cause her undue embarrassment. Her judge is the Mad Hatter. He admonishes Alice noting that litigation is not a tea party. However, he grants her requested ban.

The ban is soon breached by the Cheshire Cat who yaps to the press about Alice’s adventures in Wonderland. The Queen of Hearts is furious at the Cheshire Cat for violating the ban, and she orders her guards to arrest the cat, which goes into hiding. The authorities conduct a major cat hunt. They are not able to find the Cheshire Cat, but they do make a quick arrest of a large grin.    

And so, to what extent do we want to see the proliferation of discretionary publication bans? Does this relief enhance access to justice? The better question might be can these bans enable us to live happily ever after? 

Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His book Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging is now available in paper and e-book versions where books are sold. Visit www.marcelshumour.com. Follow him @MarcelsHumour.

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