Public Commons

Part of Court cases

Section 517 Bans

Publication bans - some notes

The following information is summarized from a number of web-sites, including the CanLII site which contains a copy of the Criminal Code and the Ontario Attorney General’s web-site on publication bans.

Publication bans -- notes from the websites:

The basic premise is that our constitution guarantees the freedom of expression which allows the publication of information about court cases.

However, exceptions to this principle can come into play in three different ways:

a) Judicial Discretion

The judge has the discretion to conduct court proceedings in a way that will ensure the fairness and integrity of case. S/he also has the responsibility to protect the privacy or safety of a victim or witness, and/or to conceal the identity of a child or youth.

b) Federal and Provincial legislation

Certain laws, including the Criminal Code, the Youth Criminal Justice Act, the provincial Mental Health Act and the Child and Family Services Act allow or mandate publication bans.

c) Common Law

Under common law (principles established in earlier court cases) a judge has the authority to impose a publication ban after weighing the principles of an accused's right to a fair trial, the right to freedom of expression and the administration of justice.

In the case of the alleged sexual assault in the park, Part XV of the Criminal Code applies. This Part sets out special procedures and powers that apply to specific offences, and sets out those instances in which the public can be excluded from court hearings. The intent of section 486.4 which deals with sexual assault cases is to protect the identity of the person allegedly assaulted (“the complainant”) and/or any witnesses. Under this section, the judge must inform the complainant and any witness under 18 that s/he is entitled to apply for a publication ban and the judge must impose the ban if the complainant or the prosecutor applies for one. If there is no application for a ban, the judge may choose to impose one and direct that "any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way".

The staff in the court office where the case is being heard will advise members of the public if a publication ban exists. If so, a member of the public can presumably request a copy of the order to banning publication to find out exactly what is and is not covered by the ban. If a ban exists, court staff are directed to refuse access to any of the information contained in the court records to a member of the public or the media. In this case, the only way to get access to this information would be by application to the court. The Attorney General’s website notes that this policy is currently under review.

The website also gives a contact to call for further clarification: Brendan Crawley, 416 326-2210.

First attempt to call him: Tuesday April 15, 10.05 a.m. Left message asking for clarification:

1. If the court clerk lists no publication ban, how can we find out?

2. Does the publication ban means an absolute ban on any information or just making sure that neither the complainant nor the witnesses can be identified?

Brendan Crawley called back at noon. Said that sexual assault publication bans mean the complainant must not be identifiable (by name or by other leads). In occasional cases the suspect's name is also not for publication -- he will find out.