Publication Bans in Canada – Who Are They Really Protecting

A publications ban is when the Court makes an order which keeps certain identifying information from being published, broadcast, or sent by anyone. Identifying information tends to pertain to the identity of a victim, witness, or someone who is somehow involved and participating in the criminal justice system.

Technically, the thought behind these bans is good: it will allow witnesses and others with vital information to feel more free and safe to come forward and take part in the justice system. However, can publication bans be abused? And are they truly helping victims, or are they becoming a source of harm?

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The Harm

Discretionary publication bans on information identifying survivors are regularly requested without any input from the plaintiff (the survivor who is doing the suing). Once these bans are in place, survivors are often not free to tell their stories or to give their explanations of events. There have even been cases where survivors were re-victimized for sharing their stories with loved ones.

For example, a woman who was sexually assaulted by her ex-husband shared information with her friends and family about the reasons for the conviction given by the judge, and this information was spread further to other friends. Her ex-husband found out, reported her to the police, and she was found guilty and fined. The decision was appealed and eventually overturned. However, the emotional stress of having to once again suffer through victimization by her abuser could not be reversed.

Publication bans often also keep vital information secret. There is a trial scheduled in Newfoundland for next Spring, in which the identity of the abuser is being completely hidden. A prominent lawyer is being charged with sexual assault of a female, whom he allegedly began to abuse when she was only twelve years old. The public is not being told who this man is, as a publication ban is protecting his identity.

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These bans heavily affect the ability of the media to report on information that the public deserves to know. It is concerning to see that the use of publication bans has seen strong growth over the last couple of years. The biggest issue is not knowing why they are being requested and what information is being hidden. Studies and information on how publication bans are used are sorely lacking.

Discretionary publication bans are generally also more accessible to those who are wealthy and powerful, and the media typically does not have the means to fight the bans. Due to this, demands for bans are becoming more common. The constitution protects the right to court openness, and this right being abused directly impacts society and its ability to trust in the transparency of the justice system.

More Change is Needed

There have already been some positive changes and developments regarding discretionary publication bans. There are now four provinces (Ontario, Alberta, BC, and Nova Scotia) that have a notification system set up, where publication ban request notifications are sent to the media and other parties. These are then able to object to the publication ban requests before they are put in place.

However, these systems are also flawed. For example, while notifications for requests are sent out, the results of the requests are not shared. There is still a lot of work to be done to ensure that publication bans genuinely protect and benefit those who need it, rather than benefiting those who are powerful enough to abuse the system and silence those whose voices we need to hear.

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Here to Help

At McGuiness Law, we want to help you. We can read through the legalese, meet important deadlines, and fight for your voice and rights. If you have any questions and would like to connect with us for a free, no-obligation consultation, please consider giving us a call at 1-833-662-2624. You can also visit our website at McGuinessLaw.com.