Review Board Publication Bans
| This page was last substantively updated or reviewed January 2015. (Rev. # 95579) |
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Legislation
- Order restricting publication — sexual offences
672.501 (1) Where a Review Board holds a hearing referred to in section 672.5 [procedure at disposition hearing] in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence referred to in subsection 486.4(1) [order restricting publication – sexual offences], the Review Board shall make an order directing that any information that could identify a victim, or a witness who is under the age of eighteen years, shall not be published in any document or broadcast or transmitted in any way.
- Order restricting publication — child pornography
(2) Where a Review Board holds a hearing referred to in section 672.5 [procedure at disposition hearing] in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence referred to in section 163.1 [child pornography], a Review Board shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of section 163.1 [child pornography], shall not be published in any document or broadcast or transmitted in any way.
- Order restricting publication — other offences
(3) Where a Review Board holds a hearing referred to in section 672.5 [procedure at disposition hearing] in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence other than the offences referred to in subsection (1) [order restricting publication – sexual offences] or (2) [order restricting publication – child pornography], on application of the prosecutor, a victim or a witness, the Review Board may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the Review Board is satisfied that the order is necessary for the proper administration of justice.
- Order restricting publication
(4) An order made under any of subsections (1) to (3) [order restricting publication – various offences] does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
- Application and notice
(5) An applicant for an order under subsection (3) [order restricting publication – other offences] shall
- (a) apply in writing to the Review Board; and
- (b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the Review Board specifies.
- Grounds
(6) An applicant for an order under subsection (3) [order restricting publication – other offences] shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
- Hearing may be held
(7) The Review Board may hold a hearing to determine whether an order under subsection (3) [order restricting publication – other offences] should be made, and the hearing may be in private.
- Factors to be considered
(8) In determining whether to make an order under subsection (3) [order restricting publication – other offences], the Review Board shall consider
- (a) the right to a fair and public hearing;
- (b) whether there is a real and substantial risk that the victim or witness would suffer significant harm if their identity were disclosed;
- (c) whether the victim or witness needs the order for their security or to protect them from intimidation or retaliation;
- (d) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;
- (e) whether effective alternatives are available to protect the identity of the victim or witness;
- (f) the salutary and deleterious effects of the proposed order;
- (g) the impact of the proposed order on the freedom of expression of those affected by it; and
- (h) any other factor that the Review Board considers relevant.
- Conditions
(9) An order made under subsection (3) [order restricting publication – other offences] may be subject to any conditions that the Review Board thinks fit.
- Publication of application prohibited
(10) Unless the Review Board refuses to make an order under subsection (3) [order restricting publication – other offences], no person shall publish in any document or broadcast or transmit in any way
- (a) the contents of an application;
- (b) any evidence taken, information given or submissions made at a hearing under subsection (7) [order restricting publication – hearing may be held]; or
- (c) any other information that could identify the person to whom the application relates as a victim or witness in the proceedings.
- Offence
(11) Every person who fails to comply with an order made under any of subsections (1) to (3) [order restricting publication – various offences] is guilty of an offence punishable on summary conviction.
- Application of order
(12) For greater certainty, an order referred to in subsection (11) [order restricting publication – breach of order] also prohibits, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim or witness whose identity is protected by the order.
2005, c. 22, ss. 17, 64.
[annotation(s) added]
- Definition of disposition information
672.51 (1) In this section, "disposition information" means all or part of an assessment report submitted to the court or Review Board and any other written information before the court or Review Board about the accused that is relevant to making or reviewing a disposition.
- Disposition information to be made available to parties
(2) Subject to this section, all disposition information shall be made available for inspection by, and the court or Review Board shall provide a copy of it to, each party and any counsel representing the accused.
- Exception where disclosure dangerous to any person
(3) The court or Review Board shall withhold some or all of the disposition information from an accused where it is satisfied, on the basis of that information and the evidence or report of the medical practitioner responsible for the assessment or treatment of the accused, that disclosure of the information would be likely to endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused.
- Idem
(4) Notwithstanding subsection (3) [exception where disclosure dangerous to any person], the court or Review Board may release some or all of the disposition information to an accused where the interests of justice make disclosure essential in its opinion.
- Exception where disclosure unnecessary or prejudicial
(5) The court or Review Board shall withhold disposition information from a party other than the accused or an Attorney General, where disclosure to that party, in the opinion of the court or Review Board, is not necessary to the proceeding and may be prejudicial to the accused.
- Exclusion of certain persons from hearing
(6) A court or Review Board that withholds disposition information from the accused or any other party pursuant to subsection (3) [exception where disclosure dangerous to any person] or (5) [exception where disclosure unnecessary or prejudicial] shall exclude the accused or the other party, as the case may be, from the hearing during
- (a) the oral presentation of that disposition information; or
- (b) the questioning by the court or Review Board or the cross-examination of any person concerning that disposition information.
- Prohibition of disclosure in certain cases
(7) No disposition information shall be made available for inspection or disclosed to any person who is not a party to the proceedings
- (a) where the disposition information has been withheld from the accused or any other party pursuant to subsection (3) [exception where disclosure dangerous to any person] or (5) [exception where disclosure unnecessary or prejudicial]; or
- (b) where the court or Review Board is of the opinion that disclosure of the disposition information would be seriously prejudicial to the accused and that, in the circumstances, protection of the accused takes precedence over the public interest in disclosure.
- Idem
(8) No part of the record of the proceedings in respect of which the accused was excluded pursuant to subparagraph 672.5(10)(b)(ii) [removal or absence of accused – removal for safety] or (iii) [removal or absence of accused – removal for safety, determination hearing] shall be made available for inspection to the accused or to any person who is not a party to the proceedings.
- Information to be made available to specified persons
(9) Notwithstanding subsections (7) [prohibition of disclosure in certain cases] and (8) [proceedings without accused not disclosable], the court or Review Board may make any disposition information, or a copy of it, available on request to any person or member of a class of persons
- (a) that has a valid interest in the information for research or statistical purposes, where the court or Review Board is satisfied that disclosure is in the public interest;
- (b) that has a valid interest in the information for the purposes of the proper administration of justice; or
- (c) that the accused requests or authorizes in writing to inspect it, where the court or Review Board is satisfied that the person will not disclose or give to the accused a copy of any disposition information withheld from the accused pursuant to subsection (3) [exception where disclosure dangerous to any person], or of any part of the record of proceedings referred to in subsection (8) [proceedings without accused not disclosable], or that the reasons for withholding that information from the accused no longer exist.
- Disclosure for research or statistical purposes
(10) A person to whom the court or Review Board makes disposition information available under paragraph (9)(a) [copy of disposition order for statistical or research purposes] may disclose it for research or statistical purposes, but not in any form or manner that could reasonably be expected to identify any person to whom it relates.
- Prohibition on publication
(11) No person shall publish in any document or broadcast or transmit in any way
- (a) any disposition information that is prohibited from being disclosed pursuant to subsection (7) [prohibition of disclosure in certain cases]; or
- (b) any part of the record of the proceedings in respect of which the accused was excluded pursuant to subparagraph 672.5(10)(b)(ii) [removal or absence of accused – removal for safety] or (iii) [removal or absence of accused – removal for safety, determination hearing].
- Powers of courts not limited
(12) Except as otherwise provided in this section, nothing in this section limits the powers that a court may exercise apart from this section.
1991, c. 43, s. 4; 1997, c. 18, s. 85; 2005, c. 22, ss. 18, 42(F), c. 32, s. 22; 2014, c. 6, s. 8.
[annotation(s) added]