Peter Ritchie, defence lawyer for accused serial killer Robert Pickton, is seeking a publication ban that is absolutely breathtaking in its restrictiveness. The Crown is on Ritchie's side, but media lawyers are promising a fight.

Some excerpts from the CP story carried by thestar.com:

In arguing for a sweeping publication ban on pre-trial submissions in the Robert Pickton serial murder case, defence lawyer Peter Ritchie said some "evidence may never be in front of the jury and that may have a devastating effect if it gets out."

Besides the normal statutory bans on reporting potentially prejudicial evidence from pre-trial motions, Ritchie wants B.C. Supreme Court Justice Geoffrey Barrow to ensure nothing said in the hearing leaves the courtroom.

"The first motion that you're going to hear . . . is going to involve allegations that arise from the police investigation concerning potential involvement of others in murders," Ritchie told Barrow.

"We are pursuing potential avenues of defences for our client and if others are affected by that, it's my submission (that) that should be a concern for the Crown."

Ritchie said Barrow should not only bar publication via traditional print and broadcast media and the Internet, but the judge should also forbid anyone attending the court - reporters or spectators - to reveal what they heard there to anyone else. ...

media lawyer Robert Anderson, representing the Vancouver Sun and Province, said publication bans that were put in place during a preliminary hearing have worked and that Ritchie's proposal goes too far.

"It's unworkable, it's unenforceable, it's nuts, with respect, and it's of no efficiency," he told Barrow.

Outside court, he said the public has a right to know how the justice system has handled the case.

"There's no question the nature of this investigation is an issue of incredible public importance," he said.

"It's not just Mr. Pickton who's on trial, although that's certainly the most important aspect, but in many respects the Canadian justice system, the police investigation, the Crown's laying of the charges and, ultimately, the judge's rulings are being watched."

Lawyer Michael Skene, acting on behalf of CTV, said if Barrow decided to prohibit people from discussing what they heard in court, it would represent an unprecedented restriction on freedom of speech.

"If Mr. Pickton is granted the order he is seeking, it sets a very bad precedent," he said outside the courthouse. "It says that people that attend the court when they leave it aren't free to talk to other people about what they've seen or heard."

Ritchie conceded to the judge that the existing publication ban has largely worked.

"I know of no case where there has been a breach or an alleged breach . . . which is significant," he added. ...

Despite that admission ...

In making his application on Wednesday, after Pickton was charged with 12 new counts of first-degree murder, Ritchie suggested Barrow could hold the entire pre-trial hearing "in camera," to ensure nothing finds its way outside the court.

"The safest way to proceed to protect our client's interest, we submit, would be to close the court," he said.

Ritchie said Canadian journalists by and large abide by reporting restrictions, although some outlets steered Canadians to foreign websites during the preliminary hearing.

I'm hardly a legal expert, but it would be troublesome in the extreme if Ritchie gets this sweeping ban (we find out on June 1).

My reading of Dagenais vs. CBC (1994) is that the Charter requires "a balance to be achieved that fully respects the importance of both rights. A hierarchical approach to rights must be avoided, both when interpreting the Charter and when developing the common law."

This is another important section of the ruling:

 The party claiming under the common law rule that a publication ban is necessary to avoid a real and serious risk to the fairness of the trial bears the burden of justifying the limitation on freedom of expression. He must prove that the proposed ban is necessary, in that it relates to an important objective that cannot be achieved by a reasonably available and effective alternative measure, that the proposed ban is as limited as possible, and that there is a proportionality between the salutary and deleterious effects of the ban. The fact that the party seeking the ban may be attempting to safeguard a constitutional right must be borne in mind when determining whether the proportionality test has been satisfied. The judge should, where possible, review the publication ban at issue. He must consider all other options besides the ban and find that there is no reasonable and effective alternative available. He must also limit the ban as much as possible. Lastly, the judge must weigh the importance of the objectives of the particular ban and its probable effects against the importance of the particular expression that will be limited to ensure that the positive and negative effects of the ban are proportionate.

Ritchie himself has admitted that the current publication ban has largely worked, yet he wants to close the court.

I really hope B.C. Supreme Court Justice Geoffrey Barrow does not see things Ritchie's way. I can't see an appeal court upholding Barrow if he does, but it would still be evidence the courts haven't moved very far in terms of balancing press freedoms with the right to a fair trial.

It could even be seen as a regression.