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IV. LIABILITY AND PENALTY SCHEMES
Before discussing the liability and penalty schemes that should govern non-publication orders under the Criminal Code, the disparities in wording between the existing non-publication provisions should be mentioned.
The non-publication orders and publication bans provided for in the Criminal Code are intended to prevent certain information from being made public in writing or orally.
In the case of bans on passing information on in writing, subsection 486(5) of the Criminal Code prevents every one from publishing the information in any document, while other provisions are more limited, banning only the publication of the information in a newspaper, as defined in section 297 of the Criminal Code (ss. 276.3(1), 487.2(1), 517(1), 539(1), 542(2) and 648(1) of the Criminal Code). Where bans on passing information on orally are concerned, subsection 486(5) of the Criminal Code prohibits broadcasting it in any way, while other provisions prohibit broadcasting or diffusing without further clarification (s. 487.2), although limitations are placed on the mode of diffusion in the French versions of some of these provisions. Thus s. 276.3(1) uses the phrase "à la radio ou à la télévision", subsections 517(1) and 542(1) use the verb "radiodiffuser", section 648(1) uses the phrase "ni révélée dans une émission radiodiffusée" and subsection 539(1) uses the phrase "ni être révélée dans aucune émission".
Parliament's intention is to prevent certain information from being made public, and for this it is not necessary to cover situations in which the information is passed on privately, unless a person who does so aids, within the meaning of subsection 21(2), another person to make the information public. However, to afford adequate protection to information covered by a non-publication order, it is necessary to prohibit every one from making the information public by any means whatsoever. The existing provisions do not, for example, prohibit publishing the information by putting up posters in places accessible to the public or circulating it on the Internet. These omissions must accordingly be rectified.
That the existing provisions be amended to prohibit every one from making information covered by a non-publication order available to the public by any means.
The availability of defences is another important aspect in respect of which the existing provisions diverge. There are provisions that permit an accused to raise a lawful excuse, the proof of which lies on the accused (ss. 517(2), 520(9) and 521(10)), and others that do not (ss. 276.3(2), 486(5), 487.2, 539, 542(2) and 648(1)).
In view of the importance of protecting information covered by a non-publication order, the fact that the courts make such orders after weighing the interests involved and the fact that interested parties can apply to the higher courts to review them, it should not be open to a person to rely a posteriori on any lawful excuse whatsoever for contravening a non-publication order. Even the fact that information has already to a certain extent entered the public domain should not serve as a justification for spreading it further.
That a person charged with contravening a non-publication order not be permitted to raise a lawful excuse.
1. Liability Scheme
Although it is not expressly stated in the provisions authorizing non-publication orders, the penalty for contravening such an order is based on a scheme of liability founded on knowledge and general intent.
The person who publishes the information must know that the publication thereof is prohibited by order and must publish it wilfully. The onus is therefore on the prosecution to prove beyond a reasonable doubt that the person knew about the order, and the accused need only raise a bona fide lack of knowledge to raise a reasonable doubt.
Since the person to whom non-publication orders most often apply are media companies or persons working for such companies, and in view of the difficulty of proving beyond a reasonable doubt that the order was brought to their attention, they should be subject to a penalty for publishing information not only where they knew such publication to be banned, but also where they ought to have known it to be banned. It does not seem excessive to require such companies to take any reasonable action necessary to make sure that information related to criminal proceedings is not subject to a ban before publishing it.
That every media or telecommunications company be prohibited from publishing information that it knows or ought to have known to be subject to a non-publication order.
2. Penalty Scheme
A person who contravenes a non-publication order made under the Criminal Code is guilty of an offence punishable on summary conviction. Thus, under subsection 787(1) of the Criminal Code, he or she is liable only to a fine of not more than two thousand dollars or to imprisonment for six months or to both, and a corporation is liable to a fine not exceeding twenty-five thousand dollars under paragraph 719(b) of the Criminal Code. Furthermore, if the person in question contravenes a non-publication order made under the authority of the common law, such as a ban on publishing information even after the termination of the proceedings, he or she is guilty of an indictable offence and is subject to a penalty at the court's discretion (cf. Quebec (A.G.) v. Publications Photo-Police Inc.89 In addition, a person who contravenes an order authorized by any Act is under subsection 127(1) of the Criminal Code liable to imprisonment for a term not exceeding two years where no penalty is provided.
Thus, there is a disparity in penalties for which no justification can be found. Moreover, to punish the contravention of a non-publication order only as a summary offence neither sufficiently reflects the objective seriousness of the offence nor is a sufficient deterrent. However, it must be acknowledged that the contravention of such an order is not always, in view of all the circumstances, an indictable offence.
As a result, we consider it necessary to review the penalty scheme for non-publication orders and make the contravention of such orders punishable by indictment or on summary conviction. In doing so, we have two options: to make it a hybrid offence punishable by (1) imprisonment for two years less a day in the case of an indictable offence and six months on summary conviction, or (2) imprisonment for five years in the case of an indictable offence and eighteen months on summary conviction. We favour the first option in view of the power to award costs against the accused, which we will discuss in the next recommendation.
That a person who contravenes a non-publication order made on the basis of a power conferred under the Criminal Code or the common law be guilty of an offence punishable by imprisonment for two years less a day in the case of an indictable offence and six months on summary conviction.
That the fine that can be imposed on corporations be raised.
3. Power to Award Costs
The contravention of non-publication orders generally has serious consequences not only for the conduct of the criminal proceedings but also for the costs the parties must incur. As a result, a court that convicts a person who contravenes such an order should have the power, after the parties have had the opportunity to make representations, to require him or her to reimburse their costs related to the conduct of the criminal proceedings that were incurred due to the publication of information covered by the order. This power is in particular necessary with regard to section 648 of the Criminal Code, since the contravention of such an order may result not only in the failure of the proceedings and the empanelling of a new jury, but also in a change of venue, with all the related costs.
That a court that convicts a person of contravening a non-publication order have the power to require him or her to reimburse the parties' costs related to the criminal proceedings that were incurred due to the contravention, and that the court permit the parties to make any necessary representations in this respect.