Publication Ban
A publication ban is a court order prohibiting the publication, broadcast, or transmission of specified information about a case. Bans serve a range of purposes: protecting complainants and witnesses, preserving fair trial rights, safeguarding the privacy of minors, and protecting the integrity of investigations and pre-trial proceedings.
Discretionary bans are sometimes sought to protect ongoing investigations, vulnerable witnesses, identification evidence, or sensitive personal information.
Mandatory publication bans
Several Criminal Code provisions create mandatory publication bans on application. The most important include: section 486.4 — protects the identity of complainants in sexual offence cases. Mandatory on application by the complainant or the Crown for the listed offences (sexual assault, sexual interference, invitation to sexual touching, voyeurism, and many others). The court has no discretion to refuse. Section 486.5 — discretionary protection for victims and witnesses other than complainants in sexual cases. Section 539 — protects evidence taken at preliminary inquiries from publication until the accused is discharged or the trial concludes. Section 542(2) — bans publication of the accused's confession or admission until the trial is concluded. Section 648 — bans publication of trial proceedings that take place in the absence of the jury. Youth Criminal Justice Act, section 110 — protects the identity of young persons charged with offences.
Discretionary publication bans
Beyond mandatory bans, courts can issue discretionary publication bans under common-law authority and section 486 of the Criminal Code. The leading framework — known as the Dagenais/Mentuck test — requires the applicant to show: the order is necessary to prevent a serious risk to the proper administration of justice (including a fair trial) or to other important public interests; and the salutary effects of the order outweigh its deleterious effects on freedom of expression and the open court principle.
What publication bans cover
A typical publication ban prohibits publishing, broadcasting, or transmitting any information that could identify the protected person — name, image, address, school, employer, family connections, and any other identifying details. The ban applies to traditional media, online publication, and social media. Republication of older material that becomes identifying after a ban is issued can also constitute a breach.
Breaching a publication ban
Breaching a court-ordered publication ban is a criminal offence. Penalties depend on the specific provision and the nature of the breach. Even where the publisher did not intend to identify a protected person, liability can attach if the published information would, alone or in combination with other available information, allow identification.
How publication bans affect strategy
Publication bans can shape both Crown and defence strategy. They can affect the willingness of complainants and witnesses to come forward, influence the presentation of evidence at trial, and frame public discussion of the case. Skilled counsel pay attention to publication ban issues from the outset of any high-profile or sensitive matter.
How Mass Tsang manages publication ban issues
Whether seeking a discretionary ban to protect a client's interests, or working within the constraints of a mandatory ban that protects a complainant, the lawyers at Mass Tsang LLP understand the procedural and strategic dimensions of media coverage in criminal proceedings. Privacy-sensitive matters — sexual offence cases, youth matters, high-profile fraud or violence allegations — receive particular care.
Related glossary terms
