Why judges sometimes ban publication of evidence

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The media play a crucial role in our democratic system when they report on what happens in court. The Supreme Court of Canada has said,

“The open court principle is of crucial importance in a democratic society. It ensures that citizens have access to the courts and can, as a result, comment on how the courts operate and on proceedings that take place in them. Public access to the courts also guarantees the integrity of judicial processes inasmuch as the transparency that flows from access ensures that justice is rendered in a manner that is not arbitrary, but is in accordance with the rule of law.”
CBC v. Canada (Attorney General), 2011 SCC 2

But family, work responsibilities and other interests prevent most of us from actually going to court to watch justice in action. We rely on the media to be our eyes and ears in Canada’s courtrooms – to provide the transparency that ensures the integrity of our court proceedings. So it is vital to the health of our democracy that the media is able to tell us what goes on in court.

Nevertheless, there are times when it is necessary to limit publication of information disclosed in court proceedings to achieve important goals - to protect the safety and privacy of a victim, the identity of a child, or the fairness of a trial. In such circumstances, a judge may be permitted by law, or even required by law, to impose a ban on publication of information.

What are some examples? Under s. 486.4(2.1) of the Criminal Code a judge may make an order banning publication of information that could identify a victim younger than 18, but if it is requested by the prosecutor or the victim the judge must make the order.
Under s. 517(1) a justice may make an order banning publication of anything said at a bail hearing. But if the accused person requests it, the justice must make an order banning not only publication of the evidence but also publication of the reasons for granting or denying bail. There is a similar provision in s. 539(1) for the evidence at a preliminary hearing. These bans last until the person is discharged at a preliminary hearing or until their trial has ended.

Laws like this are intended to guarantee a fair trial by ensuring that potential jurors aren’t prejudiced by hearing allegations that haven’t been proven. Unfortunately, there is a downside. To protect trial fairness, we sacrifice the opportunity for the public to learn about the evidence at bail hearings and hear judicial officers’ reasons for the decisions they make about bail. An information gap like this can contribute to lack of public confidence in the bail system.

Certain other laws passed by our federal and provincial governments don’t require a ban to be pronounced by a judge – they simply make it a criminal offence to publish evidence and/or the judge’s reasons in specific circumstances.

For example, s. 648(1) of the Criminal Code says no one may publish information about any portion of a jury trial that takes place in the absence of the jury until the jury has begun its deliberations. And s. 276.3(1) says no one may publish the evidence at a hearing held during a sexual offence trial to decide whether evidence about a complainant’s previous sexual conduct can be introduced in the trial. Sections 110 and 111 of the Youth Criminal Justice Act ban publication of the names of young people charged with offences and of witnesses or victims under 18. And section 3(6) of B.C.’s Provincial Court Act prohibits publication of anything likely to identify a child in a family or children’s matter in Provincial Court.

There seem to be more mandatory publication bans than discretionary ones. When judges do have a choice about whether to make a publication ban the Supreme Court of Canada has directed them to balance the competing interests protected by the Canadian Charter of Rights and Freedoms. They must weigh the media’s right to freedom of expression with the rights of the person seeking the ban to a fair trial and to security of the person. If a ban is justified, the judge must impose the narrowest ban that will protect the threatened rights. (Dagenais v. CBC, [1994] 3 S.C.R. 835)

So when you hear that the media cannot report something said in court, please don’t blame the judge. There may be a law preventing anyone from publishing the information. Or there may have been a request that compelled the judge to make a publication ban. And even if the judge had a choice, they will have weighed the public’s right to know against the impact of publication on trial fairness, or on the safety and privacy of a victim or witness, and limited the ban as much as possible.

For more information on publication bans, see Publication Bans on this website's Media page, and the Court's Media Guide.

This article provides general information only and should not be used authority in court proceedings or as a substitute for legal advice.