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V. SEPARATE PART FOR PUBLICATION BAN ORDERS
As the appendix to this paper demonstrates, the provisions authorizing an order for a publication ban are distributed throughout the Criminal Code. The question arises as to whether these provisions, as well as any new Sections, including those relating to procedure and appellate jurisdiction, should be collected and housed within a discreet part of the Code.
There is an advantage to having publication ban provisions located within the Sections concerning which a publication ban may be obtained in that it draws the attention of counsel to the fact a publication ban may be sought. However, in the event that there is a wholesale rationalization of these orders, it would seem sensible to locate all of the Sections, (old, amended and new) in a discreet new part of the Criminal Code.
While several organizational formats could be used in creating such a discreet part of the Criminal Code, it would seem most appropriate to draft such a part under the following subject headings to facilitate ease of reference, to encourage clarity and to avoid repetition. The section could contain a definition section, distinguish mandatory from discretionary publication bans, deal with penalties and could set out procedures with respect to such issues as notification.
This section would apply specifically to the distinct part of the Criminal Code relating to publication bans and would thus have the benefit of not inadvertently affecting other definitions throughout the Code. Such a section, would present an opportunity to include modern definitions for such terms as "publication".
While repeated reference has been made by the courts to the "media", advances in electronic communication suggest that attention might be given to other individuals or entities which may have an interest in disseminating information and therefore might properly be subject to a publication ban. An example of this might be an interest group or individual with a particular interest in disseminating information via a web site. Current Criminal Code ban provisions require close scrutiny to ensure that they respond to the realities of modern day electronic information dissemination. It could be argued that sections such as 517 which make specific reference to "published in any newspaper" are quickly losing relevance.
2. Mandatory Publication Bans
This section would enumerate all current, amended, and new sections within the Code where there is no judicial discretion with respect to ordering a publication ban, (such as a ban of publication of the complainant's name in a sexual assault case). These bans would be mandatory, and, to the extent that they have already survived constitutional attack, no additional procedures would be required in order to deal with such matters as forum or notice. Unlike those publication bans for which a balancing of interests is required between the right of the accused to a fair trial and freedom of the press, these sections would deal with issues outside that paradigm.
As a practical matter, in drafting this section all mandatory publication bans throughout the Criminal Code would be transferred to this general part, with specific section amendments as required.
3. Discretionary Publication Bans
This section would include specific reference to each of the current sections currently sprinkled throughout the Code dealing with discretionary bans on publication. In addition, unique sections such as 486(1) which grant the court discretion to limit public access to courtrooms would also be included in this section.
For clarity, it would also be preferable to add any new provisions which can be presently identified where it would be appropriate to expand the court's exercise of discretion in imposing bans. This would include such situations as that which might arise when the Crown does not wish to publicize the fact that an arrest warrant has been issued thereby alerting the accused.
It could be argued that with respect to enumerated heads of discretionary power where Parliament decides it is appropriate for judges to exercise discretion and which concern primarily the parties to the case, notice would not be required prior to the ban being imposed. It would be clear that when such an order was made a simplified appeal process would be available to any interested third party.
In addition, this section would allow for the expansion of the authority of the court to consider applications for bans on publication where the situation is not enumerated as above but, where, in consideration of the interests of justice, it might be appropriate for the court to impose such a ban. In part, this would be a codification of the common law and would set out specific requirements with respect to notification, forum and procedure for all parties.
It would provide the court with an ability to make an order in a situation that is currently unanticipated but where the public interest would make such an order appropriate.
A codified but non-exhaustive list of factors that might be considered in making such a ban "where is it necessary for the proper and orderly administration of justice" might include the following:
- (i) the proper maintenance of order and the administration of justice;
- (ii) the protection of informants/witnesses;
- (iii) ensuring the integrity of ongoing criminal investigations;
- (iv) the protection of the accused's right to a fair trial;
- (v) the encouragement of witnesses to come forward and testify; and
- (vi) the right of the public to access material before the courts, subject to any of the enumerated considerations.
- i) A court of competent criminal jurisdiction would be given the authority to exercise its discretion to impose a ban on publication of any materials required for the proper maintenance of order and the administration of justice.
(a) such a ban is necessary in order to prevent a real and substantial risk of fairness of the trial, because reasonably available alternative measures will not prevent the risk; and
(b) the salutary affects of the publication ban outweigh the deleterious affects of the free expression of those affected by the ban.
- ii) The onus for establishing that such a ban is necessary would be on the party requesting such a ban.
- iii) Insofar as the applications under the suggested general publication ban authority are concerned, prior to the imposition of such a ban, the court would be required to consider whether notice should be given to any potential third parties and if so, to give directions as to the form of such notice including time frames. There would be no specific reference to standing and the current law would prevail.
- iv) An application for a ban on publication would be made to the trial court, where it has already been designated, or before the court at the level the case will be heard, if the level of the court can be established definitively by reference to the statutory provisions; and, where it is not possible to ascertain the level of court which ultimately would try the accused, and the application should be made before a Superior Court judge being the highest court that could hear the case.
This section would deal with the liability that would be incurred for a violation of a non-publication order. Either within this section, or by means of the definition section mentioned earlier, the existing provisions would be amended to prohibit anyone from making information covered by a non-publication order available to the public by any means. A person or entity found to have published in contravention of a ban would have to demonstrate that reasonable efforts were taken to determine whether a publication ban was in existence, bearing in mind the nature of the case, in order to escape liability.
Currently, there is a disparity in the penalties which may be imposed for violation of non-publication orders. The creation of an offence of general application for which the Crown could elect to proceed either indictably or summarily would appear to be justifiable. In order to ensure that corporations would not be tempted to incur a financial penalty as a "cost of doing business", the maximum penalty for breach of a non-publication order could be increased. Similarly, for this reason and, in order to help defray the very considerable cost that might be incurred by the justice system as a consequence of a breach of a non-publication order, the court could have the ability to order costs.
This section would apply only to discretionary publication ban orders and would provide for an appeal from an order relating to publication bans to the Provincial Court of Appeal with leave regardless of whether it was issued in a summary conviction or indictable matter.
The Criminal Code be amended to include a specific part relating exclusively to orders for publication bans. These provisions would be a collection of all current as well as new provisions of the Code relating to publication bans and would be in a format similar to that set out above. It would include provisions relating to mandatory bans, enumerated discretionary bans, and a general discretionary ban authority, as well as to procedures and appeals relating to publication bans.