How Do I Get a Publication Ban?
In Canada, a publication ban is sometimes sought to prevent the press from publishing certain details about a criminal case.
This can protect the safety or reputation of a victim, witness or other individual involved in criminal justice proceedings, preventing their identity from being broadcast, as well as other information and evidence from the trial.
Such bans are common when the crime involves minors or is sexual in nature but there are other examples too.
What is a publication ban?
A publication ban is a Court order that prevents the publication, broadcast, or dissemination of information that could identify a victim, witness, or other person participating in the Canadian criminal justice system.
Since July 23rd, 2015, when the Canadian Victims Bill of Rights came into being, the ban has allowed individuals to participate in the justice system without fear of negative repercussions for their actions.
This goes against the normal tenets of the Canadian justice system, which is generally an open system, with proceedings in open court and the names of witnesses, victims, and the accused made public.
The Canadian media also has a constitutional right to report on court cases.
However, under a publication ban, the names and any other details that can identify victims or witnesses must be kept private by authorities responsible for upholding the criminal justice system and by the media.
Requirements for a publication ban
In certain circumstances, the court is mandated to issue a publication ban. In others, a judge will decide that protecting the privacy of individuals involved in criminal proceedings is in the best interests of justice.
Usually, publication bans are issued in order to:
- Encourage witnesses to testify (they may be afraid of intimidation if they do)
- Protect vulnerable witnesses (such as children or victims of sexual crime)
- Encourage victims or witnesses to report offences that are under-reported (such as rape or domestic assault)
- Protect jurors, police officers or police informants in cases involving criminal organizations or matters of terrorism/national security
For a publication ban to be issued, the court must follow strict guidelines that depend on the nature of the criminal proceedings and who is ordering the ban.
The court is mandated to issue a publication ban under the Youth Criminal Justice Act where, in crimes involving a person under the age of 18, information can only be provided to the judiciary, lawyers, police, victim(s), and the accused, i.e., those with a direct interest in the case.
For you as a witness or victim requesting a discretionary publication ban, it’s best to first discuss it with Cory Wilson at Wilson Criminal Defence.
The court must follow these rules regarding publication bans:
- Inform victims under the age of 18 of their right to seek a publication ban (if the victim requests one, it must be ordered by the court).
- Inform all victims and witnesses of sexual offences who are under 18 that they have the right to seek a publication ban (if requested, it must be issued).
- Order a publication ban to protect the identity of any victim or witness over the age of 18 if the Court believes that the order is “in the interest of the proper administration of justice.”
Before ordering a publication ban, the court must consider each of the following key factors, amongst others:
- The risk that the victim, witness or other justice system participant could be harmed if the public discover their identity
- The right of the accused person to a fair and public hearing
- The need to protect a victim, witness or justice system participant from intimidation or retaliation
- The interest of society in general in encouraging the reporting of offences by victims, witnesses and other participants.
Where to register for a publication ban
You can request a discretionary publication ban whether you are a victim, witness, or another participant in the justice system.
You must submit your request in writing to the presiding judge in the case, explaining why you require this type of protection.
All people affected by the publication ban must be informed that an application has been made, including the prosecutor, the accused, jurors, the media, etc.
As your lawyer, we will submit a notification of application for a discretionary publication ban online in the Family section of the Provincial Court of Alberta website. Any media organizations that subscribe to this service will receive an email notifying them of the application.
After you have lodged your application, there may be a court hearing to consider the request, at which all of the key stakeholders (including you or your lawyer and the media, if necessary) may offer viewpoints about the potential ban.
This hearing may be held in private rather than in open court and, after listening to the various opinions, the judge will decide whether to order the publication ban.
The order issued by the judge may have conditions attached to it, such as an expiry date (though it may be permanent). All provisions must be followed to the letter and punishments for violating the order can be severe.
If you later decide that you no longer require the publication ban, you must request the court for an order to end it, explaining how the circumstances that necessitated the order have changed.
Do you need assistance with arranging a publication ban in Calgary? Speak to Cory Wilson, your experienced criminal defence lawyer.