How to Get a Publication Ban for Criminal Charges?

Generally, to get a publication ban you must be a victim, witness, justice system participant or accused in a criminal case. Publication bans are ordered where the court is of the opinion that making the order is in the interest of the proper administration of justice. An order may be in the interest of the proper administration of justice where a victim, witness, or justice system participant is reluctant to testify for fear of retaliation or where a victim wishes to keep their identify protected in cases involving sexual offences.

Witnesses in criminal cases may file an application themselves or through the Crown to have their identify protected under section 486.31(1) of the Criminal Code. When determining whether the order will be made the Court may consider the following factors:

• The nature of the offence
• The importance of the witness’ testimony in the case
• The right to a fair and public hearing
• Whether the witness needs the order for their security or to protect them from retaliation or intimidation
• Whether there are effective alternatives to making the order
• The salutary and deleterious effects of the order
• Whether the order is needed to protect the security of anyone known to the witness
• Any other factors the Court deems relevant

Under Section 486.4(1) and (3) of the Code, victims of sexual offences are entitled to have a publication ban ordered on a mandatory basis. Witnesses in sexual offence cases may also have their identities protected. The victim or witness may make an application to the court themselves or the application can be made through the Crown.

Under section 486.5(1) and (2) of the Criminal Code, victims, witnesses and justice system participants may apply to the court to have a publication order made to protect their identity. The victim, witness or justice system participant may make the application themselves or the application may be made through the Crown.

When determining whether the order will be made the Court may consider the following factors:

• The right to a fair and public hearing
• Whether the victim, witness, or justice system participant needs the order for their security or to protect them from retaliation or intimidation
• Whether there are effective alternatives to making the order
• The salutary and deleterious effects of the order
• Any other factors the Court deems relevant

Finally, section 517(1) allows an accused to make an application for a publication ban to prohibit the release of any information disclosed during the accused’s bail hearing.

Having a complete understanding of the Elements of the Criminal Offence, Your Rights and the Consequences associated with a Criminal Record is necessary before any legal decisions are made.

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Frequently Asked Questions

What is a Publication Ban?
How can I get a Publication Ban on my Charges?
What are the Different Types of Publication Bans?
-Non-Disclosure of Witness’ Identity
-Restricting Publication – Sexual Offences
-Resticting Publication – Victims and Witnesses
-Directing Matters not be Published for a Specified Period of Time
What Happens if I Breach a Publication Ban?

Additional Resources

Assault
Assaulting a Peace Officer
Children’s Aid Society
Sexual Assault Law in Canada
Consequences of a Criminal Record
Domestic Abuse
First Offenders
Immigration Consequences
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening
Elements of a Crime
Your Rights

What is a Publication Ban?

A publication ban is an order prohibiting the publication of any identifiers of a victim, witness, justice system participant, or accused in a criminal trial. The purpose of a publication ban is to protect the identity of the victim or witnesses in certain types of criminal cases to allow individuals to participate in the court process without fear of negative consequences.

How can I get a Publication Ban on my Charges?

A publication ban is an order made by the Court to protect the identity of a victim or witness who is over the age of eighteen in a court case. Publication bans are often ordered in cases involving sexual offences where the victim does not wish to be identified. Publication bans may also be ordered to protect witnesses or justice system participants who testify at trial.

What are the Different Types of Publication Bans?

Under the Criminal Code, there are four different sections relating to publication bans. They include non-disclosure of witness’ identities, protection of the identifies of victims and witnesses in cases involving sexual offences, protection of the identities of victims, witnesses and justice system participants in certain other criminal cases, and the non-disclosure of information disclosed in bail hearings.

Non-Disclosure of Witness’ Identity

Section 486.31(1) of the Criminal Code states that in any proceeding against an accused, the presiding judge or justice may, on application of a witness or on application of the prosecutor in respect of a witness, make an order directing that any information that could identify the witness not be published. The order should be made where the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

Order Restricting Publication – Sexual Offences

Section 486.4(1) of the Criminal Code states that subject to subsection (2), a judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of any of the following offences under the Code;

(a) section 151, 152, 153, 154, 155, 160, 161, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or any other offence under the Criminal Code, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) where two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

Section 486.4(2) of the Code states that in proceedings in respect of offences listed in paragraphs (1)(a) or (b), the judge or justice shall

(a) at the first reasonable opportunity, inform a witness under the age of 18 years and the victim of the right to make an application for a publication ban; and

(b) on application made by the victim, the prosecutor, or any such witness, make the order.

Under subsection (3), in a proceeding in respect to a child pornography offence, the court shall make an order directing that any information that could identify a witness under the age of eighteen or any person who is the subject of any material that constitutes child pornography, shall not be published, or transmitted in any way.

This section makes it mandatory for the presiding justice or judge to notify the victim and any witnesses under the age of eighteen of their right to apply for a publication ban, and to make a publication ban order where the victim, a witness or the prosecutor submits an application.

Order Restricting Publication – Victims and Witnesses

Section 486.5(1) of the Criminal Code states that unless an order is made under section 486.4, on application of a victim or witness, or on application of the prosecutor in respect to a victim or witness, a justice or judge may make an order directing that any information that may identify a victim or witness shall not be published or transmitted in any way. The order may be granted where the judge or justice believes that making the order is in the interest of the proper administration of justice.

Section 486.5(2) of the Code states that on application of the prosecutor in respect of a justice system participant who is involved in the proceedings in respect of an offence referred to in subsection (2.1) (terrorism offences, offences related to organized crime, or offences related to national security) or on application of a justice system participant, the Court may make an order directing that any information that could identify the justice system participant shall not be published or transmitted in any way if the Court is of the opinion that making the order is in the interest of the proper administration of justice. This section of the Code is may be used to protect confidential informants.

Order Directing Matters not to be Published for a Specified Period of Time

Section 517(1) of the Criminal Code states that if the prosecutor or the accused intends to show cause under section 515 (judicial interim release), he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document or broadcast or transmitted in any way before such a time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial has ended.

Essentially, this prohibits the production of any information of evidence deduced during a bail hearing, until the case against the accused is dropped after a preliminary inquiry, or after the completion of the trial.

What Happens if I Breach a Publication Ban?

Section 486.6(1) of the Criminal Code makes it an offence to breach a publication order under subsection 486.4(1) or (3), or subsection 486.5(1) or (2). Those who are convicted are guilty of a summary conviction offence and face a maximum of two years less a day in prison and/or up to a $5,000 fine.