Dan Burnett says the decade-old precedent was supposed to put the constitutionally enshrined right of free expression on the same legal footing as an accused's right to a fair trial.

But a legal culture that subordinates public access to court proceedings remains pervasive, he says.

"I think that is why you see a lot of publication bans issued, then get pulled back on when there's fuller argument,'' says Burnett.

"The presumption of a lot of lawyers still, the presumption of a lot of courts still is, wait a minute, if there's some risk to a fair trial I'd better ban publication. We've just got to get beyond that.''

Defence lawyers argue the high court did raise the bar for publication bans and they don't apologize for trying to ensure potential jurors are kept in the dark about unproven evidence. ...

The weapon used most by media lawyers to attack publication bans is the Supreme Court's 1994 Dagenais decision.

It's named after one of a group of former Christian Brothers who tried to block broadcast of the CBC fictional miniseries The Boys of St. Vincent. They argued it could prejudice their upcoming trials in connection with physical and sexual abuse at training schools run by their Roman Catholic order.

Up to that time, judges routinely granted applications for publication bans because the accused's right to a fair trial trumped the right to freedom of expression.

But in a 5-3 decision, the high court struck down the ban. Chief Justice Antonio Lamer, writing the majority decision, concluded the common-law discretion that gave judges that power was inconsistent with Canada's 12-year-old Constitution.

Even before Dagenais, appeal courts leaned towards openness, says Burnett.

But Dagenais spelled out that, in weighing the need for a ban, judges now would have to balance the prospect of tainting the jury pool against free expression guaranteed under the Charter of Rights and Freedoms. Section 1 of the Charter allows the courts to override rights but the limitation must be considered a reasonable restriction in a free and democratic society.

Lamer wrote a ban should only be ordered when it is necessary to prevent a "real and substantial risk'' the trial might not be fair and there are no reasonable alternatives to mitigate that risk. A ban's beneficial effects must also outweigh its restriction on the free expression of those affected by it.

Dagenais also clarified the right of third parties to receive notice and to intervene in publication ban proceedings.