Publication Bans Relating to Youth Prosecutions
General Principles
The YCJA has provisions that concern the publishing of information relating to the young accused (s. 110) and any other young person relating to the case, such as victims and witnesses (s. 111).
Accused
Section 110 prohibits the publication of names of, and "other information" relating to, any young person being dealt with under the YCJA:
- Identity of offender not to be published
110 (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
- Limitation
(2) Subsection (1) does not apply
- (a) in a case where the information relates to a young person who has received an adult sentence;
- (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and
- (c) in a case where the publication of information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.
- Exception
(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.
- Ex parte application for leave to publish
(4) A youth justice court judge shall, on the ex parte application of a peace officer, make an order permitting any person to publish information that identifies a young person as having committed or allegedly committed an indictable offence, if the judge is satisfied that
- (a) there is reason to believe that the young person is a danger to others; and
- (b) publication of the information is necessary to assist in apprehending the young person.
- Order ceases to have effect
(5) An order made under subsection (4) ceases to have effect five days after it is made.
- Application for leave to publish
(6) The youth justice court may, on the application of a young person referred to in subsection (1), make an order permitting the young person to publish information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, if the court is satisfied that the publication would not be contrary to the young person’s best interests or the public interest.
2002, c. 1, s. 110; 2012, c. 1, s. 189.
- Purpose
The ban on publication of the identity of a young offender is aimed at allowing the young person to "reintegrate into their community after serving a sentence" and avoid the stigma of involvement in the justice system such that it could "hamper efforts to move on with life".[1]
- Duration
Despite s. 110 being silent on the issue, it appears that the publication ban under 110 only lasts as long as there is risk that publication may "hinder rehabilitation by stigmatization or [cause] premature labelling".[2]
- Charter
The shift of burden found under s. 110(2) on to a young person who has been sentenced as an adult to maintain a s. 110 publication ban is contrary to s. 7 of the Charter of Rights and Freedoms and is not saved by s. 1.[3]
- ↑ R v Munroe, 2013 NSPC 45 (CanLII), per Campbell J
- ↑
R v Carvery, 2012 NSCA 107 (CanLII), per Beveridge JA, at para 94
- ↑ R v DB, 2008 SCC 25 (CanLII), , [2008] 2 SCR 3, per Abella J
Victims or Witnesses
- Identity of victim or witness not to be published
111 (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
- Exception
(2) Information that would serve to identify a child or young person referred to in subsection (1) as having been a victim or a witness may be published, or caused to be published, by
- (a) that child or young person after he or she attains the age of eighteen years or before that age with the consent of his or her parents; or
- (b) the parents of that child or young person if he or she is deceased.
- Application for leave to publish
(3) The youth justice court may, on the application of a child or a young person referred to in subsection (1), make an order permitting the child or young person to publish information that would identify him or her as having been a victim or a witness if the court is satisfied that the publication would not be contrary to his or her best interests or the public interest.
- Purpose
It would appear that one of the purposes of this section is to protect young people that "are particularly vulnerable to intrusions into their privacy".[1]
- Duration
The publication ban under s. 111 of the YCJA on the name of a complainant will extend beyond the duration of their life.[2]
- ↑
R v B(Y), 2014 ONCJ 390 (CanLII), per Cohen J, at para 35
- ↑ R v Canadian Broadcasting Corp., 1998 CanLII 6998 (NWT CA), per Foisey JA
Consequences of Publishing
- Non-application
112. Once information is published under subsection 110(3) or (6) or 111(2) or (3), subsection 110(1) (identity of offender not to be published) or 111(1) (identity of victim or witness not to be published), as the case may be, no longer applies in respect of the information.
Lifting Publication Ban
- Decision regarding lifting of publication ban
75 (1) When the youth justice court imposes a youth sentence on a young person who has been found guilty of a violent offence, the court shall decide whether it is appropriate to make an order lifting the ban on publication of information that would identify the young person as having been dealt with under this Act as referred to in subsection 110(1).
- Order
(2) A youth justice court may order a lifting of the ban on publication if the court determines, taking into account the purpose and principles set out in sections 3and 38, that the young person poses a significant risk of committing another violent offence and the lifting of the ban is necessary to protect the public against that risk.
- Onus
(3) The onus of satisfying the youth justice court as to the appropriateness of lifting the ban is on the Attorney General.
- Appeals
(4) For the purposes of an appeal in accordance with section 37, an order under subsection (2) is part of the sentence.
2002, c. 1, s. 75; 2012, c. 1, s. 185.