Publications bans

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1. Automatic 

a. Criminal Code 

b. Youth Criminal Justice Act (YCJA)

c. Sex Offender Information Registration Act (SOIRA)

d. Provincial Court Act

e. Intimate Images Protection Act (IIPA)

2. Mandatory on application 
3. Discretionary 

If someone has the right to access a court record, the existence of a publication ban generally does not prevent access to the court record. A publication ban can prevent anyone from publishing, broadcasting, or transmitting information about a court case.

Courts may, and often must, impose publication bans to protect:

  • the fairness and integrity of a trial

  • the privacy and safety of victims or witnesses

  • the identity of young offenders

  • other significant public interests

It is the responsibility of the person accessing a court record or observing / listening to a court proceeding to identify and comply with any publication bans. To find out whether a mandatory or discretionary ban has been issued, ask at the court registry where the proceeding is being heard. The terms of the publication ban will indicate the applicable limitations or restrictions. You should also be aware of automatic publication bans.

This area of law is complex. If you are not sure if you can publish something, seek legal advice first. Violating a publication ban can result in serious legal consequences, may be an offence, and may constitute contempt of court.

There are three main types of publication bans:

  • Automatic Bans: These are imposed by law and take effect without a court order or a request from any party
  • Mandatory Bans Upon Request: Some laws require a judge to impose a ban if a party requests it
  • Discretionary Bans: These must be specifically requested and ordered by the court

In some cases there may be a right to apply to revoke or vary a publication ban order.

Examples of each type are provided below. This is not a complete list and does not replace the need for you to review the relevant legal provisions.

1. Automatic 

a. Criminal Code 

Section 278.95 makes it a criminal offence to publish, broadcast or transmit information from certain applications or hearings in cases involving sexual offences held to determine whether evidence regarding the prior sexual conduct of a complainant can be admitted during the trial. The ban also applies to the decision of the judge on the application unless the judge determines the decision can be published. 

Section 278.9(1) makes it a criminal offence to publish, broadcast or transmit information from certain applications or hearings to obtain records pertaining to a complainant or a witness. A hearing under sections 278.4(1) and 278.6(2) may be held in cases involving sexual offences. The ban also applies to the decision of the judge on the application unless the judge determines the decision can be published. 

Section 542(2) makes it a criminal offence to publish, broadcast or transmit an admission or confession that was given in evidence at a preliminary inquiry, unless the accused has been discharged or if the accused is ordered to stand trial, the trial has ended.

Section 672.51(11) bans the publication of any disposition information provided to the Court during the disposition hearing held after a verdict of not criminally responsible on account of mental disorder or unfit to stand trial is given, where the information has been withheld from the accused or disclosure would be seriously prejudicial to the accused.

b. Youth Criminal Justice Act (YCJA)

Section 110 provides that no person shall publish the name of, or information related to, a person if it would identify that the person was a young person dealt with under the YCJA. However, there are some exceptions. Publication is permitted, for example, when a person has received an adult sentence. 

Section 111(1) provides that no person shall publish the name of someone under the age of 18 who has been a witness or victim in connection with an offence committed or alleged to have been committed by a young person.

c. Sex Offender Information Registration Act (SOIRA)

Section 16(4) provides that, with limited exceptions, no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA.

d. Provincial Court Act

Section 3(6) prohibits publication of anything that would reasonably be likely to identify a child or party in relation to a family or children’s matter before the Provincial Court. 

e. Intimate Images Protection Act (IIPA)

Section 13 provides that in an application under section 5 or a claim under section 6 of the IIPA, the decision maker must order a ban on publication of the name of the applicant or claimant, and the respondent in certain circumstances, set out in the IIPA and the Intimate Images Protection Regulation.

2. Mandatory on application 

There are statutory bans that a judge must order if requested by a specified party. Common mandatory bans are those involving bail hearings (section 517) and preliminary inquiry hearings (section 539) under the Criminal Code.

Section 517 provides that on application by the accused, an order shall be made to ban publication, broadcast or transmission of the evidence, information given or representations made to the court during a bail hearing as well as the reasons given by the judge until the accused is discharged or, if ordered to stand trial, the trial has ended. 

Section 539 provides that on application by the accused, prior to commencing the taking of evidence, a judge shall order a ban that provides that evidence given at a preliminary inquiry not be published, broadcast or transmitted until the accused has been discharged or, if ordered to stand trial, the trial has ended. 

3. Discretionary 

Judges considering an application for a discretionary ban must consider whether to issue a ban by applying common law tests such as those set out under:

Courts have the power under common law to manage their own proceedings. This includes the ability to ban publication of all or part of a case to, for example, ensure a fair trial.

Discretionary bans can also arise under legislation. For example, under the Criminal Code discretionary bans include:

Section 486(1) provides that an order may be made to exclude the public from the courtroom for all or part of the proceeding.

Section 486.4(1) provides that an order may be made in cases involving sexual offences to ban publication, broadcast or transmission of any information that could identify a victim or witness.

Section 486.5(1) provides that an order may be made in non-sexual offence cases prohibiting any information that could identify a victim or a witness from being published, broadcast or transmitted. 

Section 517 provides that on application by the prosecutor, an order may be made to ban publication, broadcast or transmission of the evidence, information given or representations made to the court during a bail hearing as well as the reasons given by the judge until the accused is discharged or, if ordered to stand trial, the trial has ended. 

Section 539 provides that on application by the prosecutor, prior to commencing the taking of evidence, a judge may order a ban that provides that evidence given at a preliminary inquiry not be published, broadcast or transmitted until the accused has been discharged or, if ordered to stand trial, the trial has ended.