VANCOUVER — The fights over publication bans in two high-profile B.C. criminal cases suggest some lawyers and judges still aren't taking a Supreme Court of Canada ruling on the issue to heart, a prominent media lawyer says.

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.

Two controversial B.C. murder cases have renewed the debate.

A B.C. Supreme Court judge in suburban New Westminster is hearing arguments on a ban requested by accused serial-killer Robert William Pickton's lawyer to cover pre-trial hearings.

The former pig farmer faces 27 counts of first-degree murder in the disappearances of women from Vancouver's seedy Downtown Eastside.

Defence lawyer Peter Ritchie asked to bar reporters and spectators from even talking about what they heard at the hearing. He fears the sensational material, even if some of it isn't admitted as evidence, will find its way onto the Internet.

A battery of media lawyers, including Burnett, argued such a ban would be an unprecedented attack on free speech as well as being unenforceable. A ruling is expected next week.

Meanwhile, in a downtown Vancouver courtroom, Justice Robert Bauman granted, then lifted, a publication ban on Crown pre-sentence submissions against Kelly Ellard, convicted of second-degree murder in the 1997 death of 14-year-old Reena Virk.

Her lawyer, Peter Wilson, argued some of the material about the 22-year-old woman's propensity for violence was so inflammatory it would inevitably wind up on the front page of local newspapers and hurt her family.

The case was unusual because such bans normally are imposed to avoid prejudicing an accused's right to a fair trial. Ellard was convicted in April after being tried three times for Virk's killing and became a poster child for nihilistic teen violence.

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.

Bans are harder to get, at least in major cities, says Toronto media lawyer Bert Bruser, also a professor at the Ryerson School of Journalism. Judges are aware of the principles of Dagenais, including the need to give notice to the media of a ban application, he says.

But Burnett says Dagenais did nothing to remove some judges' willingness to issue bans with little or no argument until reporters _ and their lawyers _ get wind of them.

As with Ellard, many bans are withdrawn once a judge hears arguments, he adds.

Some provinces that have set up systems to notify interested parties about an application have found the number of bans sought has dropped, says Burnett.

But the onus remains on journalists to find out about a ban, even if they weren't there when it was issued and there is no formal system of posting the information, he says.

Not surprisingly, defence lawyers are aren't as sympathetic.

"The media lawyers, they act like they've been kicked in the teeth every time these things come up,'' says Mark Jette, chairman of the Canadian Bar Association's criminal justice division.

"It's sort of a `how dare you' reaction and that's not reading Dagenais fairly either. It's up to the judge and they (media lawyers) should understand that most of the time they're winning.''

Bans are not that easy to get, says Russ MacKay, executive director of the B.C. Trial Lawyers' Association.

While he think's Ritchie's application in Pickton might be extreme, "if I was Mr. Ritchie I think I'd be taking exactly the same step,'' says MacKay.

"Obviously the risk is greater the greater the notoriety of the case.''

Dagenais has raised the hurdle defence lawyers _ and sometimes the Crown _ must clear to get a ban, MacKay contends.

Jette, who represented Ellard at her first murder trial, says he's against the kind of wide-open access to pre-trial material practised in the U.S. justice system, where uncorroborated police evidence, double and triple hearsay and unproven allegations are fully reported in the media before a jury is empanelled.

"The public's way of looking at these things is where there's smoke there's fire, people don't get charged for nothing, he must have done something,'' says Jette. "They hear these allegations and people jump to guilt very quickly.''

Lawyers note that openness is balanced by allowing deeper questioning of potential American jurors about their biases.

Judges routinely instruct jurors to ignore anything they hear outside the courtroom but Jette argues it's nearly impossible for people to disentangle news reports or water-cooler gossip from proffered courtroom evidence.

"Being human beings, it's hard not to be influenced by it to some extent, even at some subconscious level,'' says Jette.

But Burnett says the Paul Bernardo teen rape-murder case demonstrated it was possible even in a highly-publicized crime to find a dozen disinterested citizens and a couple of alternates, people who didn't follow the cases closely in the media.

"Jurors are intelligent people who can follow judges' instructions is the bottom line,'' he says.

Bruser notes the controversial ban covering details of Karla Homolka's manslaughter trial _ aimed protecting the jury pool for Bernardo's trial _ was issued the year before Dagenais.

"My view is that a request for such a ban today would be laughed out of court,'' says Bruser.