What is a Publication Ban and How Does it Impact Crime Reporting?

Thunder Bay District Court
Thunder Bay District Court

Thunder Bay – News – Reporting on crime presents a challenge. It is a balance between the rights of the victims of crime, and the rights of the accused. It also means sometimes that the police in the investigation of a criminal matter will withhold information from the public and the media so that their investigation can continue.

Our legal system is based on the principle that a person is considered innocent until proven guilty. That is a far different stand than the Napoleonic Code under which a person is presumed guilty until proven innocent. That is why there is such a need for responsibility in reporting crime.

In reporting on crime, there is also a need at times for media reports to allow the police to fully investigate the incident. Many years ago, the NetNewsLedger email and social media filled up with reports of a police raid. While the first thought many people may have is that we should have rushed to report, we made a decision to gather information and make sure our report was accurate.

The police operation, Project Dolphin, as it turned out was a multi-effort enactment of warrants.

In today’s world of social media, news and information travels almost instantaneously. Sometimes that could in fact benefit criminals, and potentially put police officers on the front lines at risk.

That is often why media outlets are not instantly reporting some events.

It is the same in following proper procedures, the police can’t release names of accused until their case has been sworn in court.

Now, reality is, for some, the “news scoop” is empowering. However accurate and responsible media taking a more responsible role is important.

Often NetNewsLedger gets asked about criminal cases. While we try to cover everything we can, we don’t have a full-time court reporter.

Learning about the courts

Often in Thunder Bay Courts there are publication bans, one of the more common is a CC Section 517 publication ban.

An order CC 517 bans publication of information arising during a bail hearing, as well as the reasons given by the judge, until the accused is discharged or, if ordered to stand trial, the trial has ended. … However, the ban does not apply to any evidence given during the trial.

Section 517 publication bans may be ordered at bail hearings, and typically cover all evidence, information, what is said in court by all the parties, and the reasons for release or detention given by the justice. A section 517 publication ban is a temporary ban which extends until the accused is discharged after the preliminary inquiry or the trial is completed, subject to any other court orders. The purpose of the ban is to preserve the rights of the defendant to a fair trial, and the presumption of innocence. Further, the ban prevents public dissemination of information or evidence so that jurors make their decisions based only on admissible evidence presented during the trial. It is also intended to maintain the integrity of the evidence of any potential witness who may be called to testify in the case.

Rather than restrict the public’s right to know, the law is also designed under the common law practice of innocent until proven guilty by the courts.

Members of the public and media are permitted to view and photocopy court files covered by a section 517 publication ban but, again, details covered by the ban cannot be published in any document, or broadcast or transmitted in any way until the ban ends.

In the case of a criminal matter of a person under the age of 18, their name can not be released under federal legislation.

There are also sometime publication bans that are in effect in criminal trials.

A publication ban is an order made by the Court which prevents anyone from publishing, broadcasting, or sending any information that could identify a victim, witness, or other person who participates in the criminal justice system. A publication ban is intended to allow victims, witnesses, and others to participate in the justice system without suffering negative consequences.

This can be a sticky situation, because the privacy of the victim, especially today with social media, where in effect everyone is a publisher, can easily be compromised.

Justice Canada states that, “The Canadian Victims Bill of Rights came into force on July 23, 2015. This Act gives every victim the right to have their privacy taken into account by authorities in the criminal justice system and to ask that their identity be protected. These rights are part of a victim’s right to protection”.

A publication ban can sound like the legal system is seeking to operate outside of the usual openness of the public. However all of the details during a trial can be made in open court, however the media, and the general public are not allowed to broadcast or publish it.

That is why cameras and recording devices are not allowed in Canadian courts.

The Court will take into account who the publication ban is for, the kind of offence and other factors when deciding whether to make the order. A publication ban may be appropriate, for example, to:

  • encourage witnesses who are afraid to testify;
  • protect vulnerable witnesses, including children and victims of crime;
  • encourage victims and others to report offences that are usually under-reported, such as sexual offences; and
  • protect the privacy of justice system participants.

There is legislation that puts out the rules governing publication bans. The rules will vary depending upon who is applying for the publication ban and the nature of the proceedings.

For example, the Court must inform victims who are under the age of 18 of their right to seek a publication ban and, if the victim requests one, the Court must order the publication ban.

The Court must also tell all victims and witnesses of sexual offences who are under 18 that they have the right to seek a publication ban. If they ask for a ban, the Court must order it.

The Criminal Code also states that the Court may order a publication ban to protect the identity of any other victim over the age of 18 or any other witness if the Court believes that the order is “in the interest of the proper administration of justice.” The Court may also make this order for other people who participate in criminal proceedings such as a juror, police officer or police informant for offences involving criminal organizations, terrorism, and national security.

When deciding whether to order a publication ban for such victims, witnesses or justice system participants, the Court must take several factors into account. These include:

  • the right of the accused person to a fair and public hearing;
  • whether there is a risk that the victim, witness or justice system participant would be harmed if the public knew their identity;
  • whether the order is needed to protect a victim, witness or justice system participant from intimidation or retaliation; and
  • society’s interest in encouraging the reporting of offences and the participation of victims and witnesses and justice system participants (for example, court officers or jurors) in the criminal justice system.

How can a publication ban be requested?

The Criminal Code sets out the steps for requesting a discretionary publication ban:

  • The prosecutor, victim, witness, or justice system participant must ask for a publication ban in writing. The person asking for the order must explain why he or she needs this type of protection.
  • The request is made to the judge who will be hearing the case. If a judge has not yet been chosen, the request can be made to another judge of the same court.
  • The prosecutor, the accused, and any other person who may be affected by the publication ban must be told about the application. The Court will decide whether to tell the media or anyone else who may be affected about the application. For example, local newspapers would need to know because a publication ban would restrict how they report on the trial or proceedings.
  • The Court may hold a hearing to consider the request for the publication ban. At the hearing, the victim, witness or justice system participant can say why he or she needs the order. The prosecutor, the accused, the media, or other parties affected by the order may also speak.

What happens in a hearing?

A hearing to decide whether to order a publication ban is less formal than a trial and may be held in private, instead of in open court. The victim, witness, or justice system participant asking for the publication ban can speak for themselves or they can ask a lawyer to speak on their behalf.

If the Court agrees that a publication ban is needed to protect the identity of the victim, witness or justice system participant, the Court will order the ban. The order could have certain terms or conditions attached — for example, it may be effective for only a fixed period of time.

What are the responsibilities of victims, witnesses, and others whose identity is protected by a publication ban?

It is important for victims, witnesses and justice system participants to realize that if the Court orders a publication ban, their name cannot be reported in the news and they cannot communicate with the media in any other way. For example, a victim cannot write a letter to the editor which identifies him or her as a victim of or witness to the offence.

The victim, witness, or justice system participant may later decide that he or she no longer wants to continue the publication ban. He or she must then ask the Court for an order to end it and to state how the circumstances that made the order necessary have changed.

NetNewsLedger is publishing a series of articles on the legal system.

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