Publication bans
Media reports provide transparency that ensures the integrity of court proceedings. In some cases, it is necessary to limit publication of information to protect the safety and privacy of a victim, the identity of a child, or the fairness of a trial.
What journalists need to know
The law may permit a judge, or even require them, to impose a ban on publication of information.
Every journalist covering a court case must be alert to the possibility that a publication ban is in effect. This is particularly important when you are sending social media posts from a courtroom without much opportunity for review before publishing.
When a ban exists, it is also important to check specific statutory provisions for the exact wording of the ban, and to get legal advice when there is a question about whether publication is permitted.
Breaching a publication ban could be an offence under legislation or it could constitute contempt of court. The penalty could be a fine, a conditional discharge<p><span lang="EN-US">When a person is found guilty or pleads guilty but the judge decides it is not necessary to convict them if they obey the rules (conditions) of a probation order. If they obey all the rules, at the end of their probation they will not have a criminal record. See </span><span lang="EN-US">Criminal Code</span><span lang="EN-US"> section 730. </span><span> </span></p> or probation<p><span lang="EN-US">Being supervised in the community and following certain rules (conditions) as part of a sentence.</span><span> </span></p> order, or possibly even jail.
Types of publication bans
Automatic bans
These are created by operation of a law and not triggered by any court order or application by a party. A law simply bans publication. Journalists need to know what these statutory bans are.
Mandatory bans
A judicial officer must order a mandatory ban if a party requests it. For example, if the accused person asks for a publication ban at a bail<p><span lang="EN-US">An order made by a judicial justice or a judge releasing an accused person from jail until their trial and requiring them to obey certain conditions (rules) and return to court on a specific date. The legal term for bail is “judicial interim release”.</span><span> </span></p> hearing, the judge has no choice. Section 517 of the Criminal Code<p><span lang="EN-US">Criminal Code of Canada (CCC)</span><span lang="EN-US"> is the federal law that applies across Canada and sets out criminal offences, sentences and how a criminal case proceeds. A judge must follow the law in the </span><span lang="EN-US">Criminal Code</span><span lang="EN-US">.</span><span> </span></p> says they must order it.
Discretionary bans
These may be ordered if a party requests them. These are the only types of bans where a judge can decide whether a ban should be made. When deciding whether to make a discretionary ban, a judge will weigh 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. If a ban is ordered, they will limit it as much as possible.