Guidelines - Bans On Publication
Bans On Publication
The media is constitutionally entitled to publish information about court cases, but there are exceptions to this right. The court may (and frequently must) impose publication bans to protect the fairness and integrity of the case, the privacy or safety of a victim or witness, or the identity of a child or youth.
In addition to the presiding judge's discretion to control court proceedings to ensure a fair trial, provisions in various federal and provincial laws, such as the Criminal Code, the Youth Criminal Justice Act, the provincial Mental Health Act and the Child and Family Services Act, permit or require publication bans. Under the common law, a judge also has the authority to order a publication ban where various principles, including the effects on the accused’s right to a fair trial, the right to freedom of expression, and the administration of justice, are weighed.
The legal issues surrounding publication bans can be complicated. Reporters covering legal proceedings are urged to familiarize themselves with the subject and the governing law relating to publication bans. In some cases it may be necessary to consult with editors and obtain legal advice depending on the circumstances of the case. There are serious consequences for breaching publication bans.
(A) Publication bans provided for in legislation
Many publication bans are provided for in legislation. For example, under the Criminal Code, publication bans are common for bail hearings, preliminary hearings, and voir dires (a hearing within the trial where the judge decides whether evidence is admissible). Reporters should be aware of the relevant provisions in various laws that relate to publication bans. While not an exhaustive list, some of these include:
(i) Criminal Code
There are various sections in the Criminal Code that allow for bans on publication. They include: s. 278.95(1) (evidence of complainant’s sexual activity or evidence relating to complainant in possession of the accused); s. 278.9, (production of complainant’s or witness’ personal records); ss. 486.4 and 486.5, (sexual offences and proper administration of justice); s. 517 (judicial interim release (bail) hearings); ss. 539 and 542 (preliminary hearings); s. 631(6) (jury selection); s. 648 (jury not present), ss. 672.51 and 672.501, (Mental Disorder / Review Board hearings).
When a publication ban is imposed, the court record is available, subject to any other court orders limiting access, to any member of the public upon request to view and photocopy. It’s important to note that although the court record may be viewed and photocopied, details covered by the publication ban cannot be published, broadcast or transmitted within the meaning of the Criminal Code.
Some publication bans prohibit the publishing, broadcasting or transmitting of information. Section 278.9, for example, prohibits the publication of certain personal information in records protected from disclosure by law. Section 486.4 provides for orders restricting publication of information that could identify a complainant or witness in a sexual offence. Section 486.5 deals with publication bans on information revealing the names of victims, witnesses and justice system participants, where the order is deemed necessary for the proper administration of justice.
Temporary publication bans prohibit the publication of information for a specified period. Section 517 publication bans may be ordered at bail hearings, and typically cover all evidence, information, what is said in court by all the parties, and the reasons for release or detention given by the justice. A section 517 publication ban is a temporary ban which extends until the accused is discharged after the preliminary inquiry or the trial is completed, subject to any other court orders. The purpose of the ban is to preserve the rights of the defendant to a fair trial, and the presumption of innocence. Further, the ban prevents public dissemination of information or evidence so that jurors make their decisions based only on admissible evidence presented during the trial. It is also intended to maintain the integrity of the evidence of any potential witness who may be called to testify in the case.
Members of the public and media are permitted to view and photocopy court files covered by a section 517 publication ban but, again, details covered by the ban cannot be published in any document, or broadcast or transmitted in any way until the ban ends.
All publication bans are noted in the court record. The Information or charging document (in the Ontario Court of Justice) or Indictment (in the Superior Court of Justice) is endorsed with "PUBLICATION BAN" and the appropriate section number of the Criminal Code is noted. Ministry staff are instructed to inform members of the public and the media wishing to have access to the court record that the matter is subject to a publication ban.
Where an appellate court orders a publication ban, a publication ban sheet noting the applicable section is placed in the court file. In the Court of Appeal, publication bans are reflected in the endorsement.
(ii) Matters Involving Youth Under 18 - Under the federal Youth Criminal Justice Act (YCJA), the name of the young person or any other information that could or would identify the young person as having been dealt with under the Act cannot be published. Publication is permitted if the young person received an adult sentence; see section 110 of the YCJA. Also, under the YCJA, the name of a child or young person or any other information that could or would identify the child or young person as having been a victim or a witness in a youth justice court matter cannot be published. There are some limited exceptions to this rule. When the young person turns 18 and consents to publish or causes to be published his/her name and information that information can then be published. Similarly, where the parents of a child under 18 or of a child who has died consent to publish or cause to be published the child’s identity, then that information can also be reported (s. 111 of the YCJA). The bans pursuant to sections 110 and 111 take effect without a motion from either the prosecutor or defence.
The YCJA generally allows information (including confirming charges or court dates) about a youth criminal justice matter to be provided only to those who have a direct interest in that matter. Parties with a direct interest include the judiciary, counsel, police, victims and the accused. The media is not one of the groups identified as having a direct interest. Unless otherwise ordered, members of the public and media can be in court to hear firsthand how a case is proceeding.
In addition, in Ontario, the Provincial Offences Act provides that no person shall publish the name or any information that would identify a young person as having been dealt with under the Act (see s. 99 of the POA).
(iii) Child and Family Services Act (CFSA)– All child protection hearings are held in the absence of the public, unless the court orders otherwise. The Act also says that no person shall publish or make public information that has the effect of identifying a child who is a witness at, or a participant in, a hearing or the subject of a proceeding. The child’s parent(s) or foster parent(s) or family members also cannot be identified (s. 45 of the CFSA).
The court may make an order excluding any or all media from a hearing, or prohibiting the publication of any information about the hearing if the court is satisfied that publication would cause emotional harm to a child who is a participant, witness or subject of the proceeding (s. 45(7) of the CFSA).
B) Publication Bans Pursuant to the Common Law:
Beyond the legislation referred to above, courts also have authority under the common law to order publication bans. Such orders may be made where it is necessary to prevent a serious risk to the proper administration of justice and where reasonably alternative measures will not prevent the risk. Courts will weigh the various rights and principles – the right to a fair and public trial, the right to freedom of expression, and the efficacy of the administration of justice – in determining whether such a ban is necessary.
Inquiries Regarding the Existence of a Publication Ban:
Questions about whether a publication ban exists in a particular case may be directed to staff at the court office where the case is being heard. However, court staff are not able to provide legal advice about publication bans or other matters.
For media seeking information or documents at local courthouses, the first point of contact is the local court counter staff.
Any media questions or issues that cannot be resolved by counter staff should be raised with local Managers of Court Operations (MCOs) in person at the courthouse. MCOs are designated local media contacts who will provide information and facilitate access to documents. Counter staff and MCOs are not ministry spokespeople. For on-the-record comment or information about ministry policies, practices, programs and positions, media should contact Media Relations at 416-326-2210.