Statutory Publication Ban on Court Proceedings

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General Principles

See also: Public and Media Restrictions

There are several types of publication ban permitted under the Criminal Code:

  • An order restricting the publication of information identifying victims and witnesses (s. 486.5(1))
  • An order restricting the publication of information identifying a justice system participant for certain offences (s. 486.5(2))
  • An order restricting the publication of information identifying victims or witnesses of sexual offences (s. 486.4(2))
  • An order restricting the publication of information identifying victims under the age of 18 of non-sexual offences (s. 486.4(2))
  • An order restricting disclosure of witness identity (486.31)
  • An order restricting publication of information identifying jury members (631)
  • order restricting publication of evidence:
    • in the course of a bail hearing (517)
    • in the course of a preliminary inquiry (539)
    • in the course of a jury trial while jury is absent (648)

Under s. 486.6, anyone who violates any of these orders (s. 486.4(1), (2) or (3) or 486.5(1) or (2)) can be liable for a summary conviction offence.

Procedure

Applications for a publication ban, whether statutory or common law, should be made to the court at the level the case will be heard.[1]

There is the suggestion that where the request is for a mandatory publication ban there is no need for notice to the media. Where the ban is discretionary notice is required.[2]

  1. Dagenais v Canadian Broadcasting Corp., [1994] 3 SCR 835, 1994 CanLII 39 (SCC), per Lamer CJ, at para 16 ("This request should be made to the trial judge (if one has been appointed) or to a judge in the court at the level the case will be heard (if the level of court can be established definitively by reference to statutory provisions such as ss. 468, 469, 553, 555, 798 of the Criminal Code...")
  2. e.g. PPSC Deskbook - Ch 4 on publication bans and sealing orders

General Publication Ban (s. 486.5(1),(2))

Protection of Victims, Witness or System Participants

Order restricting publication — victims and witnesses

486.5 (1) Unless an order is made under section 486.4 [order restricting publication identifying certain persons], on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice 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 judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

Justice system participants

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1) [order restricting publication – justice system participants – enumerated offences], or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

Offences

(2.1) The offences for the purposes of subsection (2) [order restricting publication – justice system participants] are

(a) an offence under section 423.1 [intimidation of justice system participant], 467.11 [participation in activities of criminal organization], 467.111 [recruitment of members by a criminal organization], 467.12 [commission of offence for criminal organization] or 467.13 [instructing commission of offence for criminal organization], or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
Limitation

(3) An order made under this section 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.
[omitted (4), (5), (6), (7), (8) and (9)]
2005, c. 32, s. 15; 2015, c. 13, s. 19.
[annotation(s) added]

CCC


Note up: 486.5(1), (2), (2.1), and (3)

Section 486.5(1) provides the court with the authority to 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 judge or justice is satisfied that the order is necessary for the proper administration of justice."

While section 486.5(2) provides the authority to make an order to not reveal "information that could identify the justice system participant".

This can be applied for by a prosecutor, a victim or a witness, a judge or justice. (s. 486.5(1))

Procedure

486.5
[omitted (1), (2), (2.1) and (3)]
(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
Grounds

(5) An applicant for an order 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

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
[omitted (7), (8) and (9)]
2005, c. 32, s. 15; 2015, c. 13, s. 19.
[annotation(s) added]

CCC


Note up: 486.5(4), (5) and (6)

Under s.486.5(4), the application must be made in writing and notice must be given to the prosecutor, accused, or any other person affected by the order that the judge specifies. The application itself as well as the contents of a hearing on the application cannot be published.(s. 486.5(6), (9))

Requirement and Factors

"Proper Administration of Justice"

The order shall only be made where the applicant establishes that the order is "necessary for the proper administration of justice". (s. 486(1), (2), (5))

Factors

486.5
[omitted (1), (2), (2.1), (3), (4), (5) and (6)]

Factors to be considered

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant 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, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(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 judge or justice considers relevant.
Conditions

(8) An order may be subject to any conditions that the judge or justice thinks fit.

Publication prohibited

(9) Unless the judge or justice refuses to make an order, 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 (6) [order restricting publication – hearing in private]; or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings.


2005, c. 32, s. 15; 2015, c. 13, s. 19.
[annotation(s) added]

CCC


Note up: 486.5(7), (8) and (9)

Publication Ban for Victims and Witnesses of Sexual Offences

Section 486.4 provides for publication bans relating to sexual offences:

Order restricting publication  — sexual offences

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:
(i) an offence under section 151 [sexual interference], 152 [invitation to sexual touching], 153 [sexual exploitation], 153.1 [sexual exploitation of disabled], 155 [incest], 160 [bestiality], 162 [voyeurism], 163.1 [child pornography], 170 [parent or guardian procuring sexual activity], 171 [householder permitting prohibited sexual activity], 171.1 [making sexually explicit materials available to child], 172 [corrupting children], 172.1 [child luring], 172.2 [agree or arrange sexual offence against child], 173 [Indecent acts], 213 [stopping or impeding traffic], 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm], 273 [aggravated sexual assault], 279.01 [trafficking in persons], 279.011 [trafficking in persons, under 18], 279.02 [material benefit from trafficking], 279.03 [withholding or destroying docs], 280 [abduction of a person under 16], 281 [abduction of a person under 14], 286.1 [obtaining sexual services for consideration], 286.2 [material benefit from sexual services provided], 286.3 [procuring], 346 [extortion] or 347 [criminal interest rates], or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b) [order restricting publication – sexual offences – offences], the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.

[omitted (2.1) and (2.2)]

Child pornography

(3) In proceedings in respect of an offence under section 163.1 [child pornography], a judge or justice 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 that section, shall not be published in any document or broadcast or transmitted in any way.

Limitation

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.
2005, c. 32, s. 15, c. 43, s. 8; 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18; 2019, c. 25, s. 190.
[annotation(s) added]

CCC


Note up: 486.4(1), (2), (3), and (4)

Under s. 486.4 (1), the court may make an order "directing that any information that could identify the complainant or a witness" not be published, broadcast or transmitted for any sexual offences (as listed in s. 486.4(1)(a)).

Any complainant or witness under the age of 18 years old must be notified of their right to make an application for an order, and if requested by the complainant, prosecutor or witness under 18 years of age, the judge must made the order. (s. 486.4(2))

Similarly, under 486.4(3), for charges under 163.1, the court must make an order in relation to any person who comprises the subject of child pornographic materials.

The bans under s.486.4 play an important part in protecting victims by removing the fear of publication of their names should they report the offence. The mandatory nature of the order provides certainty to the victim of non-publication.[1]

Duration of Ban

A publication ban under 486.4(3) cannot be revoked by application of a third party and is not extinguished by the death of the protected person.[2]

Effect on Previously Published Information

Where information falling within s. 486.4 has been published online before the issuance of a 486.4 publication ban has been ordered, the information does not need to be taken off-line.[3]

  1. Canadian Newspapers Co v Canada (Attorney General), [1988] 2 SCR 122, 1988 CanLII 52 (SCC), at p. 132
    see also R v Adams, 1995 CanLII 56 (SCC), [1995] 4 SCR 707, per Sopinka J, at para 25
  2. R v KB, 2014 NSPC 24 (CanLII), per Campbell J
  3. R v Canadian Broadcasting Corporation, 2018 ABCA 391 (CanLII), per Rowbotham JA (3:0)

Non-Sexual Offences Relating to Victims Under 18 Years

486.4
[omitted (1) and (2)]

Victim under 18 — other offences

(2.1) Subject to subsection (2.2) [order restricting publication  – non-sexual offences – mandatory notice when victim under 18], in proceedings in respect of an offence other than an offence referred to in subsection (1) [order restricting publication – sexual offences], if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

Mandatory order on application

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1) [order restricting publication – sexual offences], if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.

[omitted (3)]

Limitation

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.
2005, c. 32, s. 15, c. 43, s. 8; 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 2019, c. 25, s. 190.
[annotation(s) added]

CCC


Note up: 486.4(2.1), (2.2) and (4)

Sexual Offences in Relation to Youthful Victims

Section 486.4(2.2) requires that a judge order the publication ban of any information identifying an underage victim.

The mandatory nature of this provision may not be constitutional as it may violate the public's right to freedom of speech under s. 2(b) of the Charter.[1]

  1. e.g. see R v RDF, 2016 SKPC 89 (CanLII), per Martinez J

Statutory Ban on Disclosure Identity of Witness

Section 486.31 is an order prohibiting the disclosure of "information that could identify the witness" during the "course of the proceedings".

Non-disclosure of witness’ identity

486.31 (1) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, make an order directing that any information that could identify the witness not be disclosed in the course of the proceedings if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

Hearing may be held

(2) The judge or justice may hold a hearing to determine whether the order should be made, and the hearing may be in private.

Factors to be considered

(3) In determining whether to make the order, the judge or justice shall consider

(a) the right to a fair and public hearing;
(b) the nature of the offence;
(c) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(d) whether the order is needed to protect the security of anyone known to the witness;
(e) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;
(e.1) whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities relating to national security or intelligence;
(f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;
(g) the importance of the witness’ testimony to the case;
(h) whether effective alternatives to the making of the proposed order are available in the circumstances;
(i) the salutary and deleterious effects of the proposed order; and
(j) any other factor that the judge or justice considers relevant.
No adverse inference

(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
2015, c. 13, s. 17, c. 20, s. 38.

CCC


Note up: 486.31(1), (2), (3), and (4)

Jury Identification Ban

See also: Juries

Under 631(6), the court or crown may order a publication ban on any information that may tend to identify jury members where it "is necessary for the proper administration of justice":

631
...

Ban on publication, limitation to access or use of information

(6) On application by the prosecutor or on its own motion, the court or judge before which a jury trial is to be held may, if the court or judge is satisfied that such an order is necessary for the proper administration of justice, make an order

(a) directing that the identity of a juror or any information that could disclose their identity shall not be published in any document or broadcast or transmitted in any way; or
(b) limiting access to or the use of that information.

R.S., 1985, c. C-46, s. 631; R.S., 1985, c. 27 (1st Supp.), s. 131; 1992, c. 41, s. 1; 1998, c. 9, s. 5; 2001, c. 32, ss. 38, 82; 2002, c. 13, s. 52; 2005, c. 32, s. 20; 2011, c. 16, s. 7.

CCC


Note up: 631(6)


Publication Ban of Evidence

Review Board Evidence

See also: Review Board Publication Bans

Section 672.501 and 672.51 govern the limitation on publication regarding information and evidence associated with an accused who has been found not criminally responsible due to mental illness.

Youth Court

Rescission of Ban

A court has power to rescind its own publication ban.[1] Bans under s. 486.4(3) for offences relating to child pornography cannot be rescinded.[2]

Bans under a mandatory provision cannot be rescinded until such time that the circumstances requiring the ban change.[3]

  1. R v Adams, [1995] 4 SCR 707, 1995 CanLII 56 (SCC), per Sopinka J
    R v KB, 2014 NSPC 24 (CanLII), per Campbell J, at para 9
  2. KB, ibid.
  3. Adams, supra, at paras 30, 31

Breach of Publication Bans

Appeals by Media of Publication Ban Orders

Section 40 of the Supreme Court Act permits the media to appeal an order of a superior court judge.[1]

  1. Dagenais v Canadian Broadcasting Corp., [1994] 3 SCR 835, 1994 CanLII 39 (SCC), per Lamer CJ
    see also Supreme Court Act, RSC 1985, c S-26

See Also