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. A publication ban prevents the complainant or witness’ identity from being published in print or being broadcast on television, film, or radio. There are various sections in the Criminal Code that allow for bans on publication. There are serious consequences for breaching publication bans.
One of the principles of our justice system is openness and as a result, most criminal proceedings take place in open court where the names of witnesses, victims and accused persons are made public. Exceptions can however, be made in certain circumstances. A publication ban may enable victims and witnesses to participate in the justice system without suffering adverse consequences.
The Criminal Code says a judge may make an order to protect the identity of any victim or witness, or any information that could disclose his or her identity, if the judge is satisfied that the order is “necessary for the proper administration of justice.” In the case of sexual offences, the Criminal Code says a judge must order a publication ban to protect the identity of all victims of sexual offences and witnesses of sexual offences who are less than 18 years old. In these cases, the judge tells the victim, witness or Crown prosecutor that they may make a request for this protection. If a request is made, the judge must order a publication ban.
Regardless of the offence, publication bans will protect the identity of young people who are victims or witnesses, both in adult and youth court.
If a victim is worried about being embarrassed by testifying, he/she is not likely to be granted a publication ban. In order to impose a ban, the judge must consider:
- the right of the accused person to a fair and public hearing;
- whether there is a real and substantial risk that the victim or witness would suffer significant harm if his or her identity were to be disclosed;
- the availability of effective alternatives to protect the identity of the victim or witness; and
- the impact of the proposed order on the freedom of expression of those affected by it.
The judge may hold a hearing to consider the request for the publication ban. At the hearing, the victim or witness has an opportunity to say why the order is necessary for him or her. The Crown prosecutor, the accused, the media or other parties who are affected by the order may also speak.
If a judge makes a publication ban on the victim’s identity, the media will not be able to report the name of the victim or any information that could identify the victim. The media may also be prohibited from reporting on the identity of the accused if his/her identity could identify the victim. For example, if the accused is the victim’s father, then the media may not report his identity either. If the victim later decides that he or she no longer wants the publication ban to continue, he or she must apply to the court for an order terminating it. There are no strict guidelines as to what is deemed to be identifying information, and this can cause victims distress when there is reporting that they see as leading to their identification, but the judge and reporters do not see that.
One of the reasons for publication bans of the identities of sexual assault victims was the high levels of under-reporting of this crime. Sexual assault is a highly under-reported crime in Canada and as many as 90% of victims of sexual violence do not report to police according to the results from several General Social Surveys on victimization. One of the common reasons victims give for not reporting is that they did not want anyone to know. The victim’s extreme violation of personal privacy is likely an important consideration in their decision not to report.
The National Women’s Study presented in Rape in America: A Report to the Nation found half of rape victims (50 percent) would be “a lot more likely to report” to police if there was a law prohibiting the news media from disclosing their name and address and almost 9 out of 10 women (86 percent) felt victims would be “less likely” to report rapes if they felt their names would be disclosed by the news media.
Judges may also impose publication bans on evidence at bail hearings or preliminary hearings if he/she believes it is necessary to ensure the accused has a fair trial. If the judge believes the evidence could impact on the public’s perception of the crime, he/she may place a publication ban on the evidence. The accused has a right to be presumed innocent and if the evidence may impact the potential jury’s ability to do so, a publication ban may help ensure an accused person’s Charter rights are protected. These issues are complex and may require service providers to spend significant time explaining and demystifying publication bans.
What are the responsibilities of victims, witnesses, and others whose identity is protected by a publication ban?
It is important for victims, witnesses and justice system participants to realize that if the Court orders a publication ban, their name cannot be reported in the news and they cannot communicate with the media in any other way. For example, a victim cannot write a letter to the editor which identifies him or her as a victim of or witness to the offence.
Is lifting or removing a publication ban possible?
The victim, witness, or justice system participant may later decide that he or she no longer wants to continue the publication ban. He or she must then ask the Court for an order to end it and to state how the circumstances that made the order necessary have changed.