Breach of Publication and Access Bans (Offence): Difference between revisions

Breach of Publication and Access Bans
	s. 278.9, 486.6, 517, 539, 648 (CCC), 138 (YCJA) of the Crim. Code and Youth Crim. Justice Act
Election / Plea
Crown Election	Summary (all CCC); Hybrid (YCJA); summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	Prov. Court; Sup. Court w/ Jury (); Sup. Court w/ Judge-alone (); * Must be indictable.
Summary Dispositions
Avail. Disp.	Discharge (730); Suspended Sentence (731(1)(a)); Fine (734); Fine + Probation (731(1)(b)); Jail (718.3, 787); Jail + Probation (731(1)(b)); Jail + Fine (734); Conditional Sentence (742.1);
Minimum	None
Maximum	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) incarceration
Indictable Dispositions
Avail. Disp.	Discharge (730); Suspended Sentence (731(1)(a)); Fine (734); Fine + Probation (731(1)(b)); Jail (718.3, 787); Jail + Probation (731(1)(b)); Jail + Fine (734); Conditional Sentence (742.1)
Minimum	None
Maximum	2 years incarceration
Reference
	Offence Elements; Sentence Digests;

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Latest revision as of 10:38, 13 October 2024

This page was last substantively updated or reviewed October 2023. (Rev. # 96592)

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Overview

Offences relating to failure to comply with a publication bans are found in Part XV of the Criminal Code relating to "Special Procedure and Powers".

Pleadings

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)	Preliminary Inquiry
s. 486.6 [breach of order under s. 486.4 or 486.5]	Summary Offence(s)	N/A	No	No
s. 278.9 [publication ban on docs re sexual offences]	Summary Offence(s)	N/A	No	No
s. 517 [breach of pub. ban on bail evidence]	Summary Offence(s)	N/A	No	No
s. 539 [breach of pub. ban on preliminary inquiry evidence]	Summary Offence(s)	N/A	No	No
s. 648 [breach of pub. ban on juries]	Summary Offence(s)	N/A	No	No
s. 138 YCJA [breach of youth order]	Hybrid Offence(s)	Yes	No	No

Offence Wording

Section 486.4 and 486.5 Orders

Offence

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) [order restricting publication – sexual offences] or subsection 486.5(1) or (2) [order restricting publication – justice system participants] is guilty of an offence punishable on summary conviction.

Prosecution — limitation

(1.‍1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

Application of order

(2) For greater certainty, an order referred to in subsection (1) [breach of ss. 486.4 and 486.5 publication ban – offence] applies to prohibit, 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, witness or justice system participant whose identity is protected by the order.
2005, c. 32, s. 15; 2019, c. 13, s. 151; 2023, c. 28, s. 5.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 486.6 (1), (1.1) and (2)

Private Records For Certain Sexual Offences

Publication prohibited

278.9 (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under section 278.3 [application to produce for sexual offences];

(b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) [in camera hearing for application to produce] or 278.6(2) [review of hearing to produce — who appears]; or

(c) the determination of the judge pursuant to subsection 278.5(1) [judge may order production of record for review] or 278.7(1) [judge may order production of record to accused] and the reasons provided pursuant to section 278.8 [reasons for decision to produce], unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.

Offence

(2) Every person who contravenes subsection (1) [publication prohibited on production hearing] is guilty of an offence punishable on summary conviction.
1997, c. 30, s. 1; 2005, c. 32, s. 14.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 278.9 (1) and (2)

Judicial Authorization Records

Restriction on publication

487.2 If a search warrant is issued under section 487 [territorial search warrants] or a search is made under such a warrant, everyone who publishes in any document, or broadcasts or transmits in any way, any information with respect to

(a) the location of the place searched or to be searched, or

(b) the identity of any person who is or appears to occupy or be in possession or control of that place or who is suspected of being involved in any offence in relation to which the warrant was issued,

without the consent of every person referred to in paragraph (b) is, unless a charge has been laid in respect of any offence in relation to which the warrant was issued, guilty of an offence punishable on summary conviction.
R.S., 1985, c. 27 (1st Supp.), s. 69; 2005, c. 32, s. 16; 2022, c. 17, s. 23.

[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 487.2

Bail Evidence

Order directing matters not to be published for specified period

517 (1) If the prosecutor or the accused intends to show cause under section 515 [judicial interim release provisions], he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

Failure to comply

(2) Every person who fails, without lawful excuse, to comply with an order made under subsection (1) [order directing matters not to be published for specified period] is guilty of an offence punishable on summary conviction.
(3) [Repealed, 2005, c. 32, s. 17]
R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17; 2018, c. 29, s. 62.

– CCC (CanLII), (DOJ)

Note up: 517 (1) and (2)

Preliminary Inquiry

Order restricting publication of evidence taken at preliminary inquiry

539 (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

[omitted (2)]

Failure to comply with order

(3) Every one who fails to comply with an order made pursuant to subsection (1) [publication ban of preliminary inquiry evidence] is guilty of an offence punishable on summary conviction.
(4) [Repealed, 2005, c. 32, s. 18]
R.S., 1985, c. C-46, s. 539; R.S., 1985, c. 27 (1st Supp.), s. 97; 2005, c. 32, s. 18.

– CCC (CanLII), (DOJ)

Note up: 539 (1) and (3)

Juries

Restriction on publication

648 (1) After permission to separate is given to members of a jury under subsection 647(1) [jurors may separate until deliberation], no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

Offence

(2) Every one who fails to comply with subsection (1) [restriction on publication of trial proceedings without jury present] is guilty of an offence punishable on summary conviction.
(3) [Repealed, 2005, c. 32, s. 21]
R.S., 1985, c. C-46, s. 648; 2005, c. 32, s. 21.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 648 (1) and (2)

Youth Criminal Justice Proceedings

Offences

138 (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Provincial court judge has absolute jurisdiction on indictment

(2) The jurisdiction of a provincial court judge to try an adult charged with an offence under paragraph (1)(a) is absolute and does not depend on the consent of the accused.

– YCJA (CanLII), (DOJ)

Note up: 138 (1) and (2)

Draft Form of Charges

See also: Draft Form of Charges

		Pre-ambles
		"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section	Subject of Offence	Draft Wording
278.9(a)		"..., did publish, broadcast or transmit in a document, the contents of an application made under s. 287.3, to wit: [conduct], contrary to section 278.9(a) of the Criminal Code."
278.9(b)		"..., did publish, broadcast or transmit in a document, evidence taken, information given or submissions made at a hearing under s. 278.4(!) or 278.6(2), to wit: [conduct], contrary to section 278.9(b) of the Criminal Code."
278.9(c)		"..., did publish, broadcast or transmit in a document, the contents of an application made under s. 287.3, to wit: [conduct], contrary to section 278.9(c) of the Criminal Code."
486.6		"..., contrary to section 486.6 of the Criminal Code.
517(2)		"..., without lawful excuse did fail to comply with an order directing that evidence taken or information given or representations made or the reasons given in proceedings under s. 515 regarding juticial interim release, not be published or broadcast or transmitted without the accused having been discharged, committed for trial or the trial having ended, to wit: [conduct], contrary to section 517(2) of the Criminal Code."
539(2)		"..., contrary to section 539(2) of the Criminal Code.
648(2)		"..., did publish, broadcast, or transmit information regarding a portion of a trial at which a jury is not present before the jury has retired to consider its verdict, to wit: [conduct], contrary to section 648(2) of the Criminal Code.
138	info or records re young person	"..., contrary to section 138 of the Youth Criminal Justice Act.

Proof of the Offence

Interpretation of the Offence

Constitutionality

Section 487.2 was found to be unconstitutional and of no force or effect as it violated the right to freedom of expression s. 2(b) of the Charter.^[1]

↑ Canadian Newspapers Co. Ltd. v A.-G. Canada, 1986 CanLII 3911 (MB QB), 28 CCC (3d) 379, per Barkman J - re s. 443.2 (as it was)
Canadian Newspapers Co. Ltd. v Attorney-General of Canada and two other actions, 1986 CanLII 2675 (ON SC), 29 CCC (3d) 109, per Osler J
Girard c Demers, 2001 CanLII 39738 (QC CA), per Fish JA

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Factors

Ranges

Ancillary Sentencing Orders

Offence-specific Orders

General Sentencing Orders

Order	Conviction	Description
Non-communication order while offender in custody (s. 743.21)	any	The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738)	any	A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737)	any	A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

General Forfeiture Orders

Forfeiture	Conviction	Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))	any	Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not* apply to summary offences*.
Fine in Lieu of Forfeiture (s. 462.37(3))	any	Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491)	any	Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1)	any	Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not* apply to summary offences*.

Record Suspensions and Pardons

Convictions under s. 486.6 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".