October 16, 2012
Week 6, class 1, Tuesday
publication bans in criminal and youth cases.
Rationale behind publication bans:
publication bans are a CLEAR infringement on the right to freedom of expression guaranteed in the
charter and the principle of open courts
Journalists see them as unneccesarily, sometimes illegally, restrictive gag orders.
The canadian position, publicity is an important element of the justice system.
But it shouldnt interfere with the proper administration of justice.
Statutory: enacted by law. Typically ones related to disclosure to prejudicial info in pre trial cases. Set
out in laws enacted by parliament, that apply to certain types of information or specifc stages of
Temporarily restrict the broadcast of publication of information that could prejudice a defendant's
Non-Statutory: judges have more discretion. Case by case basis.
The principl of open justice (open access to courts) demands that publication restrictions be as limited
in scope as possible.
In many cases, judges must formally impose a ba, as opposed to its happening automatically, and news
outlets must be notified.
Even under a ban, reporters may be in the courtroom, taking notes.
Most bans expire once charges are dismissed, a defendant pleads guilty or a verdict is reached. I.e once
there is no longer any need to protect the right to a fair trial. Judges can ban the publication of names
and other details that could identify victims of sex related crimes and any witnesses younger than 18.
Many news outlets choose not to identify complainants in sex related cases, regardless of bans.
Some victims of sexual offences don't want their identities protected.
Asaskatchewan judge has ruled it is NOT mandatory for a court to impose a ban if a prosecutor seeks it
without the complainant's request.
Bans on identifying details of claimants in sex related cases are permanent unless a judge deems
Even if people whose identities are protected by a ban choose to go public, reporters can face fines
unless the ban is formally rescinded by the judge.
Similar bans apply to victims in extortion cases and any person represented in any form of chi