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Court Bans – Proceedings under the Criminal Code, RSC 1985, c. C-46

The Canadian federal Criminal Code absolutely bans publication or broadcast of certain information and also empowers Judges to make other bans on application by the prosecution, the accused or a witness. 

Pursuant to “inherent jurisdiction”, Superior Courts also make ad hoc non-publication orders in circumstances not expressly authorized by the Criminal Code

Certain other provisions of the Criminal Code must also be taken into account when determining whether or not acts or omissions involved in the process of investigation leading to publication or broadcast are lawful.

The relevant Criminal Code provisions are indexed under the following topic headings:

(a) General
(b) Before Charges are Laid
(c) First Court Appearance by Accused
(d) Preliminary Inquiry
(e) Pre-Trial Hearings
(f) Trial

Relevant decisions of the Supreme Court of Canada relating to court bans (civil and criminal) include the following:

1982 January 26 Attorney General of Nova Scotia v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175
1988 September 1 Canadian Newspapers Co. v. Canada (Attorney General), 1988 CanLII 52 (SCC), [1988] 2 S.C.R. 122
1989 December 21 Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326
1991 March 28 Vickery v. Nova Scotia Supreme Court (Prothonotary) [1991] 1 S.C.R. 671
1994 December 8 Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835
1995 May 4 Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) [1995] 2 S.C.R. 97
1995 December 21 R. v Adams, [1995] 4 S.C.R. 707
1996 October 31 Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480
2001 September 13 Lac d'Amiante du Québec Ltée v. 2858-0702 Québec Inc. [2001] 2 S.C.R. 743
2001 November 15 R. v. Mentuck, 2001 SCC 76 (CanLII), [2001] 3 S.C.R. 442, 2001 SCC 76
2001 November 15 R. v. O.N.E., 2001 SCC 77 (CanLII), [2001] 3 S.C.R. 478, 2001 SCC 77
2002 April 26 Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 (CanLII), [2002] 2 S.C.R. 522, 2002 SCC 41
2003 June 23 Vancouver Sun (Re), 2004 SCC 43 (CanLII), [2004] 2 S.C.R. 332, 2004 SCC 43
2005 June 29 Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 (CanLII), [2005] 2 S.C.R. 188, 2005 SCC 41
2007 October 11 Named Person v Vancouver Sun, 2007 SCC 43
2010 June 10 Toronto Star Newspapers Ltd. v Canada, 2010 SCC 21
2011 January 28 Canadian Broadcasting Corporation v The Queen, 2011 SCC 3

Legal Disclaimer

McConchie Law Corporation makes this webpage available to clients, friends of the firm, legal researchers, and others interested in Media law with the caveat that nothing on this website constitutes legal advice. Potential media law litigants should ensure that they obtain appropriate legal advice tailored to their specific circumstances.

McConchie Law Corporation can not accept any responsibility for keeping information on this webpage up-to-date although it strives to do so. Cases of interest should be carefully up-dated before any reliance is placed on them.

McConchie Law Corporation does not express any view concerning the validity of the findings of fact made by the courts whose decisions are listed on this webpage. Findings of fact may be discussed, however, to the extent necessary to provide context for a court's decision.


CRIMINAL CODE PROVISIONS

A. GENERAL back to top

IGNORANCE OF THE LAW

19.   Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.

PARTIES TO OFFENCE / Common intention

21. (1) Every one is a party to an offence who
    (a) actually commits it;
    (b) does or omits to do anything for the purpose of aiding any person to commit it; or
    (c) abets any person in committing it.
       
  (2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

DISOBEYING ORDER OF COURT / Attorney General of Canada may act.

127. (1)

Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of

    (a) an indictable offence and liable to imprisonment for a term not exceeding two years; or
    (b) an offence punishable on summary conviction.
       
  (2) Where the order referred to in subsection (1) was made in proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government, any proceedings in respect of a contravention of or conspiracy to contravene that order may be instituted and conducted in like manner.

B. BEFORE CHARGES ARE LAID back to top

POLICE INVESTIGATIONS OFFENCES RELATING TO PUBLIC OR PEACE OFFICER

129. (1)

Every one who

    (a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer,
    (b) omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so, or
    (c) resists or wilfully obstructs any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure,
      Is guilty of
    (d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or
    (e) an offence punishable on summary conviction.

OBSTRUCTING JUSTICE

139. (1)

Every one who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding

    (a) by indemnifying or agreeing to indemnify a surety, in any way and either in whole or in part, or
    (b)

where he is a surety, by accepting or agreeing to accept a fee or any form of indemnity whether in whole or in part from or in respect of a person who is released or is to be released from custody,

      Is guilty of
    (c) an indictable offence and is liable to imprisonment for a term not exceeding two years, or
    (d) an offence punishable on summary conviction.
     
  (2) Every one who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
     
  (3) Without restricting the generality of subsection (2), every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed,
    (a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence;
    (b) influences or attempts to influence by threats, bribes or other corrupt means a person in his conduct as a juror; or
    (c) accepts or obtains, agrees to accept or attempts to obtain a bribe or other corrupt consideration to abstain from giving evidence, or to do or to refrain from doing anything as a juror. 

SEARCH WARRANTS

RESTRICTION ON PUBLICATION

487.2 (1)

If a search warrant is issued under section 487 or 487.1 or a search is made under such a warrant, every one who publishes in any document, or broadcasts or transmits in any way, any information with respect to

    (a) the location of the place searched or to be searched, or
    (b)

the identity of any person who is or appears to occupy or be in possession or control of that place or who is suspected of being involved in any offence in relation to which the warrant was issued,

    without the consent of every person referred to in paragraph (b) is, unless a charge has been laid in respect of any offence in relation to which the warrant was issued, guilty of an offence punishable on summary conviction.

ORDER DENYING ACCESS TO INFORMATION USED TO OBTAIN A WARRANT
OR PRODUCTION ORDER / Reasons / Procedure / Application for variance order.

487.3 (1)

A judge or justice may, on application made at the time of issuing a warrant under this or any other Act of Parliament or a production order under section 487.012 or 487.013 or of granting an authorization to enter a dwelling-house under section 529 or an authorization under section 529.4 or at any time thereafter, make an order prohibiting access to and the disclosure of any information relating to the warrant or authorization on the ground that

    (a) the ends of justice would be subverted by the disclosure for one of the reasons referred to in subsection (2) or the information might be used for an improper purpose; and
    (b)

the ground referred to in paragraph (a) outweighs in importance the access to the information.

     
  (2)

For the purposes of paragraph (1)(a), an order may be made under subsection (1) on the ground that the ends of justice would be subverted by the disclosure

    (a) if disclosure of the information would
(i) compromise the identity of a confidential informant,
(ii) compromise the nature and extent of an ongoing investigation
(iii) endanger a person engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used, or
(iv) prejudice the interests of an innocent person; and
    (b) for any other sufficient reason
       
  (3) Where an order is made under subsection (1), all documents relating to the application shall, subject to any terms and conditions that the justice or judge considers desirable in the circumstances, including, without limiting the generality of the foregoing, any term or condition concerning the duration of the prohibition, partial disclosure of a document, deletion of any information or the occurrence of a condition, be placed in a packet and sealed by the justice or judge immediately on determination of the application, and that packet shall be kept in the custody of the court in a place to which the public has no access or in any other place that the justice or judge may authorize and shall not be dealt with except in accordance with the terms and conditions specified in the order or as varied under subsection (4).
       
  (4)

An application to terminate the order or vary any of its terms and conditions may be made to the justice or judge who made the order or a judge of the court before which any proceedings arising out of the investigation in relation to which the warrant wor production order as obtained may be held.

C. FIRST COURT APPEARANCE BY ACCUSED back to top

JUDICIAL INTERIM RELEASE (BAIL HEARINGS)

ORDER DIRECTING MATTERS NOT TO BE PUBLISHED FOR SPECIFIED PERIOD/Failure to comply

517. (1)

If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

    (a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
    (b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.
       
  (2) Every one who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

D. PRELIMINARY INQUIRY back to top

PRELIMINARY INQUIRY

POWERS OF JUSTICE

537. (1) A justice acting under this Part may
    ...  
    (h) order that no person other than the prosecutor, the accused and their counsel shall have access to or remain in the room in which the inquiry is held, where it appears to him that the ends of justice will be best served by so doing;

EVIDENCE AT THE PRELIMINARY INQUIRY

ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY/Accused to be informed of right to apply for order/Failure to comply with order

539. (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry
    (a) may, if application therefor is made by the prosecutor, and
    (b) shall, if application therefor is made by any of the accused,
       
      make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,
       
    (c) he or she is discharged; or
    (d) if he or she is ordered to stand trial, the trial is ended.
       
  (2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1).
     
  (3) Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offense punishable on summary conviction.

CONFESSION OR ADMISSION OF ACCUSED / Restriction of publication of reports of preliminary inquiry /

542. (1) Nothing in this Act prevents a prosecutor giving in evidence at a preliminary inquiry any admission, confession or statement made at any time by the accused that by law is admissible against him.
       
  (2) Every one who publishes in any document, or broadcasts or transmits in any way, a report that any admission or confession was tendered in evidence at a preliminary inquiry or a report of the nature of such admission or confession so tendered in evidence unless
    (a) the accused has been discharged, or
    (b) if the accused has been ordered to stand trial, the trial has ended,
    is guilty of an offence punishable on summary conviction.

E. PRE-TRIAL HEARINGS back to top

RAPE SHIELD PROVISIONS

APPLICATION FOR HEARING / Form and content of application / Jury and public excluded / Judge may decide to hold hearing

276.1 (1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 276.2 to determine whether evidence is admissible under subsection 276(2).
       
  (2) An application referred to in subsection (1) must be made in writing and set out
    (a) detailed particulars of the evidence that the accused seeks to adduce, and
    (b) the relevance of that evidence to an issue at trial,
    and a copy of the application must be given to the prosecutor and to the clerk of the court.
       
  (3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.
     
  (4) Where the judge, provincial court judge or justice is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or such shorter interval as the judge, provincial court judge or justice may allow where the interests of justice so require, and that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under section 276.2 to determine whether the evidence is admissible under subsection 276(2).

JURY AND PUBLIC EXCLUDED / Complainant not compellable / Judge’s determination and reasons / Record of reasons

276.2 (1) At a hearing to determine whether evidence is admissible under subsection 276(2), the jury and the public shall be excluded.
     
  (2) The Complainant is not a compellable witness at the hearing.
     
  (3) At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part thereof, is admissible under subsection 276(2) and shall provide reasons for that determination, and
    (a) where not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted;
    (b) the reasons must state the factors referred to in subsection 276(3) that affected the determination; and
    (c) where all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.
     
  (4) The reasons provided under subsection (3) shall be entered in the record of the proceedings or, where the proceedings are not recorded, shall be provided in writing.

PUBLICATION PROHIBITED / Offence

276.3 (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:
    (a) the contents of an application made under section 276.1;
    (b) any evidence taken, the information given and the representations made at an application under section 276.1 or at a hearing under section 276.2;
    (c) the decision of a judge or justice under subsection 276.1(4), unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and
    (d) the determination made and the reasons provided under section 276.2, unless
(i) that determination is that evidence is admissible, or
(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.
       
  (2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction;

HEARING IN CAMERA / Persons who may appear at hearing / Costs.

278.4 (1) The judge shall hold a hearing in camera to determine whether to order the person who has possession or control of the record to produce it to the court for review by the judge.
       
  (2) The person who has possession or control of the record, the complainant or witness, as the case may be, and any other person to whom the record relates may appear and make submissions at the hearing, but they are not compellable as witnesses at the hearing.
       
  (3) No order for costs may be made against a person referred to in subsection (2) in respect of their participation in the hearing.

REVIEW OF RECORD BY JUDGE / Hearing in camera / Provision re hearing.

278.6 (1) Where the judge has ordered the production of the record or part of the record for review, the judge shall review it in the absence of the parties in order to determine whether the record or part of the record should be produced to the accused.
       
  (2) The judge may hold a hearing in camera if the judge considers that it will assist in making the determination.
       
  (3) Subsections 278.4(2) and (3) apply in the case of a hearing under subsection (2).

JUDGE MAY ORDER PRODUCTION OF RECORD TO ACCUSED/ Factors to be considered / Conditions on production / Copy to prosecutor / Record not to used in other proceedings / Retention of record by court.

278.7 (1) Where the judge is satisfied that the record or part of the record is likely relevant to an issue at trial or to the competence of a witness to testify and its production is necessary in the interests of justice, the judge may order that the record or part of the record that is likely relevant be produced to the accused, subject to any conditions that may be imposed pursuant to subsection (3).
       
  (2) In determining whether to order the production of the record or part of the record to the accused, the judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy and equality of the complainant or witness, as the case may be, and any other person to whom the record relates and, in particular, shall take the factors specified in paragraphs 278.5(2)(a) to (h) into account.
       
  (3) Where the judge orders the production of the record or part of the record to the accused, the judge may impose conditions on the production to protect the interests of justice and, to the greatest extent possible, the privacy and equality interests of the complainant or witness, as the case may be, and any other person to whom the record relates, including, for example, the following conditions:
 
(a) that the record be edited as directed by the judge;
(b) that a copy of the record, rather than the original be produced;
(c) that the accused and counsel for the accused not disclose the contents of the record to any other person, except with approval of the court;
(d) that the record be viewed only at the offices of the court;
(e) that no copies of the record be made or that restrictions be implodes on the number of copies of the record that may be made; and
(f) that information regarding any person named in the record, such as their address, telephone number and place of employment, be severed from the record.
       
  (4) Where the judge orders the production of the record or part of the record to the accused, the judge shall direct that a copy of the record or part of the record be provided to the prosecutor, unless the judge determines that it is not in the interests of justice to do so.
     
  (5) The record or part of the record that is produced to the accused pursuant to an order under subsection (1) shall not be used in any other proceedings.
     
  (6) Where the judge refuses to order the production of the record or part of the record to the accused, the record or part of the record shall, unless a court orders otherwise, be kept in a sealed package by the court until the later of the expiration of the time for any appeal and the completion of any appeal in the proceedings against the accused, whereupon the record or part of the record shall be returned to the person lawfully entitled to possession or control of it. 

PUBLICATION PROHIBITED / Offence

278.9 (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:
    (a) the contents of an application made under section 278.3;
    (b)

any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) or 278.6(2); or

    (c) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.
       
  (2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction. 

EXCLUSION OF PUBLIC IN CERTAIN CASES / Protection of witnesses under 18 and Justice system participants / Reasons to be stated

486 (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion or all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such and order is in the interest of public morals, the maintenance of order or the proper administration of justice or  is necessary to prevent injury to international relations or national defence or national security.
       
  (2) For the purposes of subsections (1), the “proper administration of justice” includes ensuring that
    (a) the interests of witnesses under the age of eighteen years are safeguarded in all proceedings; and
    (b) justice system participants who are involved in the proceedings are protected.
       
  (3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272, 273, 279.01, 279.02 or 279.03 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.

SUPPORT PERSON WITNESSES UNDER 18 OR WHO HAVE A DISABILITY
/ Other witnesses / Application / Factors to be considered / Witness not to be a support person / No communication while testifying / No adverse inference

486.1 (1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who has a mental or physical disability, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
       
  (2) In any proceedings against an accused, the judge or justice may, on application of the prosecutor or a witness, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of.
       
  (2.1) An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings.
       
  (3) In making a determination under subsection (2), the judge or justice shall take into account the age of the witness, whether the witness has a mental or physical disability, the nature of the offence, the nature of any relationship between the witness and the accused, and any other circumstance that the judge or justice considers relevant.
       
  (4) The judge or justice shall not permit a witness to be a support person unless the judge or justice is of the opinion that doing so is necessary for the proper administration of justice.
       
  (5) The judge or justice may order that the support person and the witness not communicate with each other while the witness testifies.
       
  (6) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

TESTIMONY OUTSIDE COURT ROOM –WITNESSES UNDER 18 OR WHO HAVE A DISABILITY / Other witnesses / Application / Factors to be considered / Specific offences / Offences / Same procedure of determinations / Conditions of exclusion / No adverse inference

486.2 (1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
       
  (2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor or a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of.
       
  (2.1) An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings.
       
  (3) In making a determination under subsection (2), the judge or justice shall take into account the factors referred to in subsection 486.1(3).
       
  (4) Despite section 650, if an accused is charged with an offence referred to in subsection (5), the presiding judge or justice may order that any witness testify
    (a) outside the court room if the judge or justice is of the opinion that the order is necessary to protect the safety of the witness; and
    (b) outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of.
       
  (5) The offences for the purposes of subsection (4) are
    (a) an offence under section 423.1, 467.11, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
    (b) a terrorism offence;
    (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
    (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
       
  (6) If the judge or justice is of the opinion that it is necessary for a witness to testify in order to determine whether an order under subsection (2) or (4) should be made in respect of that witness, the judge or justice shall order that the witness testify in accordance with that subsection.
     
  (7) A witness shall not testify outside the court room under subsection (1), (2), (4) or (6) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.
     
  (8) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

ORDER RESTRICTING PUBLICATION - SEXUAL OFFENCES

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
    (a) Any of the following offences:
     
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
    (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
     
  (2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
    (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
    (b) on application made by the complainant, the prosecutor or any such witness, make the order.
       
  (3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
       
  (4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.

ORDER RESTRICTING PUBLICATION – VICTIMS AND WITNESSES /
Justice system participants / Limitation / Application and Notice / Grounds / Hearing may be held / Factors to be considered / Conditions / Publication prohibited

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
     
  (2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
       
  (3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
       
  (4) An applicant for an order shall
    (a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
    (b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
       
  (5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
       
  (6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
       
  (7) In determining whether to make an order, the judge or justice shall consider
    (a) the right to a fair and public hearing;
    (b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
    (c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
    (d) society's interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
    (e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
    (f) the salutary and deleterious effects of the proposed order;
    (g) the impact of the proposed order on the freedom of expression of those affected by it; and
    (h) any other factor that the judge or justice considers relevant.
       
  (8) An order may be subject to any conditions that the judge or justice thinks fit.
       
  (9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
    (a) the contents of an application;
    (b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
    (c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings.

OFFENCE / Application of Order

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
       
  (2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

SCHEDULE “A” – OFFENCES UNDER SECTION 486(3) OF THE CRIMINAL CODE

Section 486.(3) of the Criminal Code (above) refers to the following offences:

151 Sexual interference
152 Invitation to sexual touching
153 Sexual exploitation
153.1 Sexual exploitation of a person with a disability
155 Incest
159 Anal intercourse
160(2) Compelling the commission of bestiality
160(3) Bestiality in presence of or by child
163.1 Corrupting public morals
171 Householder permitting sexual activity
172 Corrupting children
172.1 Luring a child
173 Indecent acts (exposure)
212 Procuring
271 Sexual assault
272 Sexual assault with a weapon, threats to a third party or causing bodily harm
273 Aggravated sexual assault
279.01 Trafficking in persons
279.02 Material benefit (from trafficking in persons)
279.03 Withholding or destroying documents (relating to trafficking in persons)
346 Extortion
347 Criminal Interest Rate

Section 486.4 (1) refers to the following offences:

151 Sexual interference
152 Invitation to sexual touching
153 Sexual exploitation
153.1 Sexual exploitation of a person with a disability
155 Incest
159 Anal intercourse
160(2) Compelling the commission of bestiality
160(3) Bestiality in presence of or by child
163.1 Corrupting public morals
171 Householder permitting sexual activity
172 Corrupting children
172.1 Luring a child
173 Indecent acts (exposure)
212 Procuring
271 Sexual assault
272 Sexual assault with a weapon, threats to a third party or causing bodily harm
273 Aggravated sexual assault
279.01 Trafficking in persons
279.02 Material benefit (from trafficking in persons)
279.03 Withholding or destroying documents (relating to trafficking in persons)
346 Extortion
347 Criminal Interest Rate

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JURY TRIALS

RESTRICTION ON PUBLICATION / Offence

648. (1) After permission to separate is given to members of a jury under subsection 647(1), no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
       
  (2) Every one who fails to comply with subsection (1) is guilty of an offence punishable on summary conviction.

DISCLOSURE OF JURY PROCEEDINGS

649. (1) Every member of a jury, and every person providing technical, personal, interpretative or other support services to a juror with a physical disability, who, except for the purposes of
    (a) an investigation of an alleged offence under subsection 139(2) in relation to a juror, or
    (b) giving evidence in criminal proceedings in relation to such an offence,
       
    discloses any information relating to the proceedings of the jury when it was absent from the courtroom that was not subsequently disclosed in open court is guilty of an offence punishable on summary conviction.

PART XX.1 – MENTAL DISORDER

Order restricting publication – sexual offences/ Order restricting publication - child pornography / Order restricting publication - other offences / Order restricting publication / Application and notice / Grounds / Hearing may be held / Factors to be considered / Conditions / Publications of application prohibited / Offence / Application of order

672.501 (1) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence referred to in subsection 486.4(1), the Review Board shall make an order directing that any information that could identify a victim, or a witness who is under the age of eighteen years, shall not be published in any document or broadcast or transmitted in any way.
       
  (2) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence referred to in section 163.1, a Review Board shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of section 163.1, shall not be published in any document or broadcast or transmitted in any way.
       
  (3) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence other than the offences referred to in subsection (1) or (2), on application of the prosecutor, a victim or a witness, the Review Board may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the Review Board is satisfied that the order is necessary for the proper administration of justice.
       
  (4) An order made under any of subsections (1) to (3) does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
       
  (5) An applicant for an order under subsection (3) shall
    (a) apply in writing to the Review Board; and
    (b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the Review Board specifies.
       
  (6) An applicant for an order under subsection (3) shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
       
  (7) The Review Board may hold a hearing to determine whether an order under subsection (3) should be made, and the hearing may be in private.
       
  (8) In determining whether to make an order under subsection (3), the Review Board shall consider
    (a) the right to a fair and public hearing;
    (b) whether there is a real and substantial risk that the victim or witness would suffer significant harm if their identity were disclosed;
    (c) whether the victim or witness needs the order for their security or to protect them from intimidation or retaliation;
    (d) society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;
    (e) whether effective alternatives are available to protect the identity of the victim or witness;
    (f) the salutary and deleterious effects of the proposed order;
    (g) the impact of the proposed order on the freedom of expression of those affected by it; and
    (h) any other factor that the Review Board considers relevant.
       
  (9) An order made under subsection (3) may be subject to any conditions that the Review Board thinks fit.
       
  (10) Unless the Review Board refuses to make an order under subsection (3), no person shall publish in any document or broadcast or transmit in any way
    (a) the contents of an application;
    (b) any evidence taken, information given or submissions made at a hearing under subsection (7); or
    (c) any other information that could identify the person to whom the application relates as a victim or witness in the proceedings.
       
  (11) Every person who fails to comply with an order made under any of subsections (1) to (3) is guilty of an offence punishable on summary conviction.
       
  (12) For greater certainty, an order referred to in subsection (11) also prohibits, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim or witness whose identity is protected by the order.

Definition of “disposition information”
Disposition information to be made available to parties / Exception where disclosure dangerous to any person / Idem / Exception where disclosure unnecessary or prejudicial / Exclusion of certain persons from hearing / Prohibition of disclosure in certain cases / Idem / Information to be made available to specified persons / disclosure for research of statistical purposes / prohibition on publication / Powers of court not limited

672.51 (1) In this section, “disposition information” means all or part of an assessment report submitted to the court or Review Board and any other written information before the court or Review Board about the accused that is relevant to making a disposition.
       
  (2) Subject to this section, all disposition information shall be made available for inspection by, and the court or Review Board shall provide a copy of it to, each party and any counsel representing the accused.
       
  (3) The court or Review Board shall withhold some or all of the disposition information from an accused where it is satisfied, on the basis of that information and the evidence or report of the medical practitioner responsible for the assessment or treatment of the accused, that disclosure of the information would be likely to endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused.
       
  (4) Notwithstanding subsection (3), the court or Review Board may release some or all of the disposition information to an accused where the interests of justice make disclosure essential in its opinion.
       
  (5) The court or Review Board shall withhold disposition information from a party other than the accused or an Attorney General, where disclosure to that party, in the opinion of the court or Review Board, is not necessary to the proceeding and may be prejudicial to the accused.
       
  (6) A court or Review Board that withholds disposition information from the accused or any other party pursuant to subsection (3) or (5) shall exclude the accused or the other party, as the case may be, from the hearing during
    (a) the oral presentation of that disposition information; or
    (b) the questioning by the court or Review Board or the cross-examination of any person concerning that disposition information.
       
  (7) No disposition information shall be made available for inspection or disclosed to any person who is not a party to the proceedings
    (a) where the disposition information has been withheld from the accused or any other party pursuant to subsection (3) or (5); or
    (b) where the court or Review Board is of the opinion that disclosure of the disposition information would be seriously prejudicial to the accused and that, in the circumstances, protection of the accused takes precedence over the public interest in disclosure.
       
  (8) No part of the record of the proceedings in respect of which the accused was excluded pursuant to subparagraph 672.5(10)(b)(ii) or (iii) shall be made available for inspection to the accused or to any person who is not a party to the proceedings.
       
  (9) Notwithstanding subsections (7) and (8), the court or Review Board may make any disposition information, or a copy of it, available on request to any person or member of a class of persons
    (a) that has a valid interest in the information for research or statistical purposes, where the court or Review Board is satisfied that disclosure is in the public interest;
    (b) that has a valid interest in the information for the purposes of the proper administration of justice; or
    (c) that the accused requests or authorizes in writing to inspect it, where the court or Review Board is satisfied that the person will not disclose or give to the accused a copy of any disposition information withheld from the accused pursuant to subsection (3), or of any part of the record of proceedings referred to in subsection (8), or that the reasons for withholding that information from the accused no longer exist.
       
  (10)   A person to whom the court or Review Board makes disposition information available under paragraph (9)(a) may disclose it for research or statistical purposes, but not in any form or manner that could reasonably be expected to identify any person to whom it relates.
       
  (11) No person shall publish in any document or broadcast or transmit in any way
    (a) any disposition information that is prohibited from being disclosed pursuant to subsection (7); or
    (b) any part of the record of the proceedings in respect of which the accused was excluded pursuant to subparagraph 672.5(10)(b)(ii) or (iii).
       
  (12) Except as otherwise provided in this section, nothing in this section limits the powers that a court may exercise apart from this section.
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Roger D. McConchie direct: (604) 988.1622 | fax: (604) 988.1610 | email: mcconchie@libelandprivacy.com