Question: Can I Get a Publication Ban?

No CommentThe short answer is you can get a publication ban “sometimes”.  But it’s not for the reasons you might think.

As an accused person who the law presumes to be innocent, you would think that the courts would protect you from your reputation being dragged through the mud before your trial and before any finding of guilt is made. You would think that, in fairness, if you are ultimately acquitted of the offences, you should not suffer the damage to your reputation that the spectre of a criminal allegation, especially a sexual allegation, brings.  Unfortunately, the system doesn’t work that way.

Canada, as an open democracy, practices an “open court” principle.    The “open court” principle assumes that public confidence in the law is fostered by openness and full publicity of court proceedings.

But what’s galling is, what is good for the goose is not good for the gander.

The Criminal Code contains numerous provisions for a complainant or witness to apply to a court to have a publication ban  of his or her name.  In the case of sexual offences, or where witnesses are under eighteen, a publication ban is mandatory; that is, the judge must make it if requested.  In other cases, a publication ban is discretionary, but in reality, a judge will invariably grant it, if requested.

The Code, however, contains no such protection for an accused; arguably, the person who needs a publication ban the most.

While you can obtain an order that the actual details and evidence respecting allegations presented at a bail hearing or preliminary inquiry be banned from publication, your name and what you are charged with is not only publishable, it’s right there on the court’s website for all to see.  And once the trial begins, all the details can be reported in the press.

So is there any basis on which an accused person can get a ban on publication of his or her name?  Yes, but a judge will only, and can only make such an order when the publication of your name could lead to the identification of a witness or complainant whose name is subject to a ban.  Thus, if you share the same surname as such a person, that would be the basis for such a publication ban.  As well, I have personally persuaded a court, particularly in small communities, that the circumstances of the case are such that identification of the accused would effectively identify the complainant, even if the surnames are not the same.

The good news is that Crown Counsel are often cooperative if defence counsel raise the matter and articulate the concern clearly.  With Crown Counsel onside, the judge will usually have no difficulty making the order.

Ironically, it is a place where your interest and that of the complainant or Crown witness intersect.  A small detail, perhaps.  But when you are facing a criminal charge, anything that reduces your stress, embarrassment and worry about the future is well worth pursuing.

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