Statutory Publication Ban on Identity Information

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General Principles

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

• An order restricting the publication of information identifying complainants of sexual offences [ s.486.4 ]
• An order restricting publication of information identifying victims and witnesses [ s.486.5(1) ]
• An order restricting publication of information identifying a justice system participant [ s.486.5(2) ]

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.

There is 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.

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

Order restricting publication — victims and witnesses
486.5 (1) Unless an order is made under section 486.4, 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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration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), 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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration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) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12 or 467.13, 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.
Application and notice
(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.
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); 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.

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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))

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))

The factors that must be considered to decide whether to proceed are set out in s. 486.5(7):

(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 significant 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.

"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))

Sexual Offence Publication Ban

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 person with disability]]], 155 [Incest], 159 [Anal intercourse], 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 material available to child], 172 [Corrupting children], 172.1 [Luring a child], 172.2 [Agreement or arrangement — sexual offence against child], 173 [Indecent acts], 210 [Keeping common bawdy-house], 211 [Transporting person to bawdy-house], 213 [Stopping or impeding traffic], 271 [Sexual assault], 272 [[[ |Sexual assault with a weapon, threats to a third party or causing bodily harm]]], 273 [Aggravated sexual assault], 279.01 [Trafficking in persons], 279.011 [Trafficking of a person under the age of eighteen years], 279.02 [Material benefit — trafficking], 279.03 [Withholding or destroying documents — trafficking], 280 [Abduction of person under sixteen], 281 [Abduction of person under fourteen], 286.1 [Obtaining sexual services for consideration], 286.2 [Material benefit from sexual services], 286.3 [Procuring], 346 [Extortion] or 347 [Criminal interest rate], 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), 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.

Victim under 18 — other offences
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), 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), 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.

Child pornography
(3) In proceedings in respect of an offence under section 163.1, 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.
[annotation(s) added]

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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.

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.

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.

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.

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Jury Identification Ban

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.

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Publication Ban from a Show Cause Hearing

Under s. 517, an order may be made prohibiting the publication of any evidence heard during the show cause hearing:

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, 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 one who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.
...
R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.

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Publication of Preliminary Inquiry Evidence

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.

Accused to be informed of right to apply for order
(2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1).
Failure to comply with order
(3) Every one who fails to comply with an order made pursuant to subsection (1) 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.

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Only the preliminary judge who is going to hear evidence has jurisdiction to impose a publication ban, other judges are not permitted.

Publication of Trial Evidence in Jury Trial

Restriction on publication
648. (1) After permission to separate is given to members of a jury under subsection 647(1), 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) is guilty of an offence punishable on summary conviction.
...
R.S., 1985, c. C-46, s. 648; 2005, c. 32, s. 21.

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Review Board Evidence

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

• Publication Bans Relating to Youth Prosecutions

Rescission of Ban

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

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

Breach of Publication Bans

• Breach of Publication and Access Bans (Offence)