How to get a Publication Ban?

In Ontario, “publication bans” are a specific kind of court order. It refers to the legal restrictions on the dissemination of personal, possibly identifying information that could jeopardize the safety or privacy of witnesses or victims in ongoing legal proceedings. These kinds of publication bans are often imposed and are highly relevant in sensitive situations like sexual assault cases, especially those that involve underage victims.

What is a Publication Ban?

A publication ban is an order emanating from the court that strictly prohibits anyone from sending, broadcasting, or publishing any material that could potentially be used to track the identity of a witness, victim, or another party involved in legal proceedings. The purpose of publication bans is mostly to prevent any adverse consequences for the victims and witnesses of legal proceedings. This might include the prevention of people intimidating witnesses to not testify.

When is it appropriate for the Court to issue a publication ban?

Transparency is an important consideration when deciding whether to issue a publication ban. Our legal system is premised on transparency and accountability, in pursuit of the principle that justice must “be done and be seen to be done”.

Note that there are exemptions. The most common one is in cases where the identity of victims/witnesses have to be protected for safety reasons.

When they are deciding whether to issue a publication ban or not, the Court takes into consideration a number of factors. These factors might involve the type of offence in question and who specifically the publication ban is being ordered for. For example, a Court might be more inclined to order a publication ban for individuals under 18 as children deserve extra protection in the legal system.

What are some scenarios in which a publication ban might be ordered?

There are a couple of situations where the Court is required to order a publication ban. In some other cases, it is a judge that will use their own judgment to determine if whether it is in the best interests of justice to protect the privacy of parties involved in ongoing legal proceedings.

Publication bans can be used to incentivize or encourage witnesses to come forward testify, as they might be otherwise afraid to do so for fear of retaliation from those who they are testifying against.

Publication bans might be ordered to defend victims in a vulnerable position, such as minors or victims of sexual assault. Publication bans could also be used to encourage witnesses or victims of underreported crimes (such as domestic abuse or rape) to come forward and report/testify about these crimes. Publication bans could also be used to protect juries, police, or police informants in criminal prosecutions involving terrorist organizations or national security/terrorism-related issues.

For a Court to grant a publication ban, they must comply with the established rules that are based on the unique circumstances of each case and who exactly the order is being issued for. This is especially relevant in cases where disclosing personal details about the victims and witnesses could lead to the defendant in the legal proceedings retaliating against them. This fear is amplified if they know the names of people who are testifying against them.

For example, let’s say that person A is an underage female is testifying against person B for sexual assault. Person C and D are witnesses to this crime. A publication ban would be ordered in this case because of person A’s protected status as a youth and because if person B finds out who exactly is testifying against them, they might retaliate in a violent fashion or send people to intimidate the witnesses, to encourage them to not testify.

Does the Court always have to grant a publication ban?

Not always. However, they are mandated to grant a publication ban for youths.

Under the Youth Criminal Justice Act, the Court is required to impose a publication ban, which limits people’s access to information about crimes pertaining to minors in a manner that mostly allows those with a direct interest in the case to know the details—that is, the lawyers involved, the police involved, the victims, and so on.

What is the process for someone to order a publication ban?

Generally speaking, a publication ban should be requested in writing by the Crown, victim, witness, or any parties directly involved with the legal proceedings. The person requesting the order is typically required to outline the reasons as to why they are seeking this kind of extra protection.

Normally, the judge who is scheduled to preside over the case receives the request for a publication ban. If a judge has not yet been selected, any other judge of the same court might hear the request.

The Court will determine whether to disclose the application to the media or any other parties that might be impacted. For instance, a publication ban would limit how local publications could cover the trial or proceedings, so they would need to be informed.

To discuss the request for the publication ban, the Court might schedule a hearing. The victim, witness, or any person involved in the legal system may be asked to attend so that they can explain why they require the order. Here, the parties involved can lay out their reasons as to why they think that this additional layer of protection would keep them safe in this situation. For instance, a witness could assert that they are afraid of the defendant gaining knowledge of the witness’ full name, allowing the defendant to locate the witness after they are finished with proceedings to seek violent reprisal.  The accused, the media, the prosecutor, and any other parties impacted by the order may also be heard.