Publication bans involving young people or sexual crimes are common in Canada, and most court reporters expect them. Bans are meant to protect victims, witnesses and, in some instances, the accused from being identified outside of the courtroom. They also prevent prejudice or misrepresentation of accounts related to the case, something that could unfairly influence a jury’s decision.
Where a ban on identifying information is issued, it prohibits the dissemination—in written or broadcast form—of any information that could potentially identify the parties involved. This includes photographs, videos, names and details, such as a person’s employment or place of residence. While these bans are intended to ensure a fair trial or protect people’s privacy or welfare, Dean Jobb, author of Media Law for Canadian Journalists, writes that they “infringe on the right to freedom of expression under the Canadian Charter of Rights and Freedoms.” [1]
In some cases and circumstances, the law may automatically require a ban; in others, the judge may use their discretion. Members of the media are entitled to appeal a discretionary decision, but journalists who break publication bans could find themselves in contempt of court, and be fined up to $10,000. [2]
The Youth Criminal Justice Act imposes a sweeping publication ban on information that would identify an accused person under the age of 18. [3] Once the accused is over 18 and is no longer in custody for a youth crime, they have the right to authorize media to disclose their identity. Underage victims of youth crime also cannot be identified; however, parents of a deceased victim may give their consent for their child’s identity to be revealed. [4]
Another category of publication bans can be found in the Criminal Code and can affect people of all ages. The Criminal Code’s section 486 restricts access to certain types of legal proceedings, and information about them. Victims and witnesses of sex-related crimes are protected specifically under section 486.4(1). This ban applies to charges of sexual assault, exploitation and interference, indecent assault and some prostitution-related charges. [5]
In the child pornography case involving the photograph of Rehtaeh Parsons, Judge Jamie Campbell ruled that a publication ban on her identity was required under section 486.4(3) of the Criminal Code, which states: “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.” [6]
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1. Dean Jobb, Media Law for Canadian Journalists (Toronto: Emond Montgomery Publications Limited, 2011), 279.
2. Jobb, 266.
3. Jobb, 299.
4. Jobb, 300-301.
5. Jobb, 281.
6. Government of Canada, “Criminal Code”, Justice Laws Website. Published in 1985 and last updated in Nov. 2014.
7. Jobb, 282.