Public and Media Restrictions

From Criminal Law Notebook

Common Law Publication Ban

A common law publication ban is available under the Dagenais/Mentuck framework.[1] The applicant must establish that:

  1. The order must be necessary to prevent a serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk; and
  2. The salutary effects of the order must outweigh the deleterious effects on the rights and interests of the parties and the public, including the right to free expression, the right of the accused to a fair and public trial and the efficacy of the administration of justice.

The application of common law publication bans will depend on the circumstances.[2]

One type of common law publication ban includes a "Confidentiality Order."[3]

"Holdback" Information

A common law publication ban is not likely appropriate to be used to protect "holdback' information in many circumstances.[4]

  1. United Kingdom of Great Britain and Northern Ireland (Attorney General) v. LA, 2020 NSCA 75 (CanLII), per Wood CJ, at para 21
  2. UK v LA, ibid., at para 20
  3. UK v LA, ibid., at para 26
  4. UK v LA, ibid., at paras 35 to 46