INTRODUCTION

The media often covers every aspect a crime and its after-effects. The events leading up to the crime, information about the parties involved, the details of the crime, and the court proceedings may become public. Media coverage can have positive or negative effects on the justice system and the participants in the criminal justice system. The coverage may be viewed as important as it ensures the public is aware of the events surrounding a crime. Actions can be taken to try to prevent negative effects of media coverage of crimes, such as a loss of privacy, trauma or reinforcement of inaccurate stereotypes.  Publication bans can be used to try to protect people involved or affected by the crime from the effects of media coverage.

DEFINITION AND PURPOSE OF PUBLICATION BANS

A publication ban is a court order preventing anyone from making certain information known or accessible to the general public through any means including television, print, radio and social media. The information banned is commonly something that could identify or harm victims, witnesses or participants in the criminal justice system, or affect the ability to carry out justice.

Publication bans are meant to protect the fairness and integrity of the case, the privacy and safety of a victim or witness, or the identity of a child or youth.

LEGISLATION

There are several pieces of legislation that control what information can be banned from publication and how. Publication bans can be mandatory or optional depending on the information, who is applying for the ban and the type of crime. Certain information must be banned automatically without an application while other laws demand that information be banned once someone has applied for a ban. Judges can have the option to not impose a publication ban.

The Criminal Code of Canada:

The Criminal Code of Canada outlines which actions are illegal and how to respond to these actions. The Code includes instructions for when and how publication bans can be used.

Mandatory and Automatic Publication Bans

These laws within the Code say that publication bans must be used in these circumstances and the bans must occur without a participant’s request for a publication ban.

  • s. 276.3 – Evidence of the victim’s sexual activity is automatically banned
  • s. 542 (2) – The fact of or details of a confession from the preliminary inquiry is automatically banned
  • s. 648 – Any information that was presented in court without the jury present is automatically banned

Mandatory Bans When Applied For

These laws state that publication bans must be used in these circumstances when someone has made an application.

  • s. 486.4 (2) – Any information that could identify the victim or a child witness in sexual assault offences has to be applied to be banned by the prosecutor, victim or witness
  • s. 486.4 (3) – Any information that could identify a witness under 18 years of age or of any person who is a subject of child pornography has to be applied to be banned by the prosecutor, victim or witness
  • s. 517 – Anything on judicial interim release (bail) hearings must be banned if applied by the accused. If the prosecutor applies for this ban it is optional.
  • s. 539(1)(b) – Evidence at preliminary hearings has to be banned when applied by the accused. If applied by the prosecutor it is optional.

Optional Bans

These laws within the Code say that publication bans can be used in these circumstances but they do not have to be. The judge can use judicial discretion where they can decide to order or not to order a publication ban.

  • s. 486.5 – Any information that could identify the victim or witness that could affect the proper administration of justice
  • s. 631 (6) – Information about the identity of a juror or information that could reveal the identity of jury
  • s.672.51 and 672.501 – Information about Mental Disorder or Review Board hearings
  • s.278.9 – Production of victim’s or witness’ personal records

Youth Criminal Justice Act (YCJA)

The Youth Criminal Justice Act covers how people under 18 years of age are treated by the system in relation to criminal offences. These laws make it so that publication bans are mandatory and automatic for youths. Any information that would identify the young victims or young witnesses of crimes is banned. Information that could identify a youth who is suspected of, charged with or found guilty of crime is banned.

Exceptions for Youth Offenders:

A young person’s involvement in the criminal justice system can be published in the following circumstances:

  1. The young person is found guilty of the crime and the court gives an adult sentence
  2. The young person has received a youth sentence for a violent crime and the court believes the person is a risk to the community where lifting the ban is needed to protect the public against that risk
  3. Publication is allowed when used in the justice process
  4. The young person has committed a crime and has not been captured. If the court believes the person is a danger to others and the publication is necessary to capture the youth (publication may be permitted for up to 5 days)
  5. The young person has turned 18, they publish or agree to the publication of their information provided they are not in custody at the time of publication
  6. The young person has applied to the court, the court may allow publication if it is sure the publication will not be against the young person’s best interests or the public’s interest
Exceptions for Young Victims or Witnesses:
  1. Information can be published after the young person turns 18 or before that with the consent of his or her parents
  2. If a young victim or witness has died, the parents may publish or agree to the publication of their child’s identity
  3. A young victim or witness can apply to the court to allow publication which the court can allow if it is satisfied that publication would not be against the young person’s best interests or the public’s interests

The Canadian Victims Bill of Rights

The Canadian Victims Bill of Rights provides victims with rights and the guidelines for how victims should be treated. Under the Canadian Victims Bill of Rights, every victim is afforded the right to protection. This includes the right to have their privacy taken into account by authorities in the criminal justice system and to ask that their identity be protected.

HOW TO APPLY FOR A PUBLICATION BAN

A publication ban can be requested by the prosecutor, victim, witness, or a justice system participant. The request must be made in writing 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 applicant must explain why this type of protection is needed.

The Court may hold a hearing to consider the request for the publication ban. This hearing is less formal than a trial and may be held in private, instead of in open court.  At the hearing,  the applicant (or a lawyer acting on behalf the applicant) can speak to why the order is needed. The Court may also hear from the prosecutor, the accused, the media, or other parties affected by the order before making a decision..

The Court must take several factors into account when making its ruling. These include:
– The accused’s right 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 the victim, witness or justice system participant from intimidation or retaliation
– Society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice system

If the Court agrees that a publication ban is needed to protect the identity of individual, the Court will order the ban. The order could have certain terms or conditions attached. For example, it may be effective for only a certain period of time.

CIRCUMSTANCES  UNDER WHICH PUBLICATION BANS ARE USED

A publication ban can be used for many different circumstances. Appropriate causes for publication bans can include:

  • Encouragement of witnesses who are afraid to testify
  • Protection of vulnerable witnesses, including children and victims
  • Encouragement of victims and others to report offences that are usually under reported such as sexual offences
  • Protection of the privacy of justice system participants

In Canada, publication bans have been used for different reasons such as to protect the victim, protect the administration of justice and protect the accused.

In the mid-1980’s, a publication ban was used to protect the identity of “Jane Doe”, the fifth victim of a serial rapist attacking women in Toronto through their off-ground balconies. Jane Doe successfully sued the Toronto police for not warning women in her neighbourhood about the earlier four rapes. She is currently an advocate for women’s rights and fights against sexual violence where she still goes by the name of “Jane Doe”.

A publication ban was used in the case of Robert Pickton, a serial killer who killed multiple women in British Columbia. Certain evidence could not be published because the evidence was not given to the jury. The information included DNA of the victims’ being on specific items and information that would tarnish his character if the jury heard it. This could potentially prejudice the jury against Pickton which could negatively impact the administration of justice.  In 2010, the British Columbia’s Supreme Court lifted the publication ban and the press published the information after he was sentenced in 2007.

An Ontarian father and step-mother in 2013 were arrested for physically and sexually assaulting their 11-year-old boy. A publication ban for the identities of the father, step-mother and the boy has been used. The parents’ identities cannot be released because they could be used to identify the boy. The father is referred to as the “Mountie Dad” to prevent the boy from being identified.

VICTIM PERSPECTIVES ON PUBLICATION BANS

Publication bans can have negative or positive effects for victims depending on the circumstances.

POSITIVE

Publication bans can help victims participate in the criminal justice process. Many victims do not report or press charges because they do not want their identity to be shared through the media. Bans can allow victims to seek justice and potentially heal. The Department of Justice stated that 14% of sexual assault victims did not report their sexual assault because they were afraid of publicity. Although many sexual assault victims do not have their identities published, some victims are still afraid of their name being released.  Publication bans encourage victims to come forward because they know they will not suffer from additional harm by the media.

The victim loses their right to privacy through media coverage. The media often asks victims for statements following a crime. As well, family and friends of victims can be asked by the media for statements. The past histories of victims can also be presented by the media. Publication bans can help victims keep their sense of privacy.

Victims can have many different emotional reactions to being victimized. The media can add to more negative emotions for the victim and can further traumatize victims. The media is known for mistreating the victim when covering crimes. News coverage of the crime can make victims feel judged by the public and shamed. As well, negative news coverage can cause negative emotions such as guilt or anger. A publication ban can prevent further trauma and harm to the victim.

NEGATIVE

Publication bans are intended to protect victims, however they can have negative effects on the victim.

Publication bans can cause the victim to be ignored or erased through not being able to speak about or share the victim’s identity. For example, Rehtaeh Parsons was a 17-year-old Nova Scotia girl who had a publication ban for her name after she killed herself. In 2011, Parsons was a victim of sexual assault, cyber bullying and child pornography when she was 15-years-old. Charges against the perpetrators were never laid when the crime occurred. Her name and crime was well known in the community and published in the media. After Parsons killed herself in 2013, charges were laid against the perpetrators of her sexual assault and child pornography victimization. A ban was used even though her parents wanted her identity to be public and her name had already been widely reported. The hashtag YouKnowHerName exploded on Twitter because the public felt that she was being ignored and it was unjust. In 2014, the ban was lifted after the parents of Parsons fought for the ban to be lifted through different means, such as wearing t-shirts that bared her name to the trial. Parsons name is currently allowed to be publicized, as long as it is not used in a derogatory way.

If victims want to remove the publication ban, they must apply to the court to have it removed. It limits the victim and their ability to heal through sharing their story.  This can cause further trauma and harm to the victim. For example, in Saskatchewan 10 year old Zachary Miller was kidnapped and sexually assaulted. At the time of his abduction, his name and photo was published everywhere.  A publication ban was imposed for his trial in 2007 and kept for ten years where Miller could be charged for sharing his story. Miller stated that ban made him feel like a victim because it refused his right of freedom of speech. In 2015, the publication was lifted after Miller applied to have the publication ban lifted.

Publication bans can have positive effects for the offender when intended to benefit the victim. With child abuse cases wherein a parent has abused a child, a publication ban for the parents’ identity will be used to protect the identity of the child. The parent still benefits from the ban and is not judged or known publicly for their crimes that other offenders would have. This is clear in the case of the “Mountie Dad” who abused his son and has a publication ban for his name. The father cannot be identified because it could identify his son. The son could apply to have the publication ban removed when he is 18-years-old, however currently the father is currently free from being publicly judged for his actions.

CONCLUSION

Publication bans can be used in many circumstances for different reasons. The Criminal Code of Canada and the Youth Criminal Justice Act are used to protect participants in the system and the administration of justice. Canada has used publication bans throughout history and will continue to use publication bans. The bans can help or harm victims depending on the circumstances of the crime and the characteristics of the victim. Publication bans can be requested by the victim or repealed on request by the victim. Victims potentially can have a say in the release of information about them.

Allen, B. (2016). Tammy and Kevin Goforth case sparks publication ban debate. CBC News. Retrieved from http://www.cbc.ca/news/canada/saskatchewan/goforth-trial-murdered-girl-no-identity-1.3444918

Canadian Resource Centre for Victims of Crime. (n.d.). Publication Bans. Retrieved from http://crcvc.ca/publications/media-guide/publication-bans/

Canadian Resource Centre for Victims of Crime. Considerations for Victims and Survivors in Dealing with the Media. Retrieved from http://crcvc.ca/docs/Media-Guide-FOR-VICTIMS-2011.pdf

Culbert, L. (2010, August 4). Lift on publication ban shed new light on Pickton case. National Post. Retrieved from http://news.nationalpost.com/news/canada/lift-of-publication-ban-sheds-new-light-on-pickton-case

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Department of Justice. (n.d). Bill C-46: Records Applications Post-Mills, A Caselaw Review. Retrieved March 8th 2016 from  http://www.justice.gc.ca/eng/rp-pr/csj-sjc/ccs-ajc/rr06_vic2/p3.html

Department of Justice. (2015). Publication Bans. Retrieved from http://www.justice.gc.ca/eng/cj-jp/victims-victimes/factsheets-fiches/publication.html

Department of Justice. (2015). Publication Bans. Retrieved from http://www.justice.gc.ca/eng/cj-jp/yj-jj/tools-outils/sheets-feuillets/publi-publi.html

Department of Justice. (2014). Sealing Orders and Publication Bans. Retrieved from http://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/p3/ch04.html

Doucette, K. (2014). Rehtaeh Parsons’ name can be published again – unless it’s derogatory: Nova Scotia. Retrieved from http://news.nationalpost.com/news/canada/nova-scotia-wont-prosecute-anyone-who-defies-ban-and-publishes-rehtaeh-parsons-name-unless-its-derogatory

Global News. (2013). A Chronology of the Rehtaeh Parsons Case. Retrieved from http://globalnews.ca/news/777152/a-chronology-of-the-rehtaeh-parsons-case/

Martin, K. (2015). Why publication bans are necessary, but must only be applied in the most necessary of cases. The Calgary Sun. Retrieved from http://www.calgarysun.com/2015/11/19/why-publication-bans-are-necessary-but-must-only-be-applied-in-the-most-necessary-of-cases

Last modified: September 23, 2016