Anyone involved in, or following, a criminal case in Ontario may come across the term "publication ban." This page gives a general overview of what a publication ban is, the difference between mandatory and discretionary bans, and what a ban practically means for what can and cannot be shared publicly. It is general information only and not legal advice, and the specific scope of a ban in any individual case should be confirmed with the Crown attorney or the court.
What Is a Publication Ban?
A publication ban is a court order that restricts what information about a case may be published, broadcast, or transmitted publicly, most often information that could identify a complainant or witness. Publication bans exist under the Criminal Code and are generally intended to protect specific interests, such as privacy and safety, while still allowing the broad workings of a criminal case, including the fact that it is proceeding and its general subject matter, to remain publicly known and reported on in non-identifying terms.
Publication bans come in two general categories: bans that are mandatory in certain circumstances, and bans that a court has discretion to impose in others. Both types are generally aimed at similar goals, but they differ in when and how they apply.
Mandatory Bans in Sexual Offence Cases
Under the Criminal Code, commonly discussed as section 486.4, a court can, and in many circumstances must, order that no information be published that could identify a complainant or witness in most proceedings involving sexual offences. Where a complainant, prosecutor, or a witness under 18 years of age requests such an order, the judge is generally required to make it. This provision is generally described as intended to protect complainants' privacy and to reduce the fear of public identification that might otherwise discourage someone from reporting a sexual offence.
This type of ban generally protects the identity of the complainant or witness, not the identity of the accused, and it is not intended to protect the fairness of the trial itself, which is addressed through other legal mechanisms.
Other Categories With Mandatory Protection
Beyond sexual offence proceedings, certain other categories of cases can also involve mandatory or near-automatic identity protection, such as cases involving child pornography offences, where courts are generally required to protect the identity of any person depicted. The precise scope of mandatory protection can vary depending on the offence and the person involved, which is one reason a Crown attorney or victim/witness assistance program should be consulted about what applies in a specific case.
Discretionary Publication Bans
Outside the categories where a ban is mandatory, a court can still, in its discretion, order a publication ban protecting the identity of a victim, witness, or certain other justice system participants, commonly discussed under section 486.5 of the Criminal Code. This kind of order is generally available where the court is satisfied it is necessary for the proper administration of justice, considering factors that generally include the right to a fair and public hearing, whether there is a real and substantial risk of significant harm if identity is disclosed, and whether the order is needed for someone's security or to protect against intimidation or retaliation.
A prosecutor, victim, witness, or the court itself can generally raise the question of whether a discretionary ban should be made, and it is decided based on the specific facts of the case rather than being automatic.
Whether a publication ban applies to a specific case, and exactly what it covers, should be confirmed with the Crown attorney or the court. Sharing information that turns out to be covered by a ban, even unintentionally, can have serious legal consequences.
What a Ban Practically Means
In practice, a publication ban generally means that media outlets, and members of the public, cannot publish, broadcast, or otherwise share information that could identify the protected person, such as their name, image, or other identifying details, including on social media. It does not generally prevent the case itself from being discussed or reported on; the general facts of a case can typically still be publicly discussed, so long as identifying details covered by the ban are left out.
A publication ban also does not generally restrict a protected person from speaking privately about their own experience, for example with a counsellor, support person, or close family member. What it restricts is public disclosure of identifying information, not a person's ability to process or discuss their own experience privately.
Different From a Closed Courtroom
A publication ban is different from a court proceeding being closed to the public entirely, which is a separate and considerably rarer measure. Open courts are a foundational principle of the Canadian justice system, so full closure of a proceeding is generally reserved for exceptional circumstances. A publication ban, by contrast, generally allows the public and media to attend and report on a case, just without publishing information that would identify the protected person. See our page on testimonial accommodations for a related but distinct measure that can, in limited circumstances, exclude the public from the courtroom during specific testimony.
A Complainant's Own Choice About the Ban
Recent changes to the law have generally given complainants a greater degree of choice regarding publication bans made for their own protection, including the ability to request that a ban not be made, or to later apply to have an existing ban revoked or varied, subject to certain conditions and court processes. Because this area has been the subject of recent legislative change, anyone with questions about their own options regarding a ban should raise this directly with the Crown attorney or a victim/witness assistance program.
If a Ban Appears to Have Been Breached
If a victim or witness becomes aware that a publication ban appears to have been breached, such as identifying information being shared online, this is generally something to raise promptly with the Crown's office or police, since breaching a publication ban can itself carry legal consequences. This general page cannot advise on the specific facts of any breach; a lawyer or the Crown's office can address what steps are appropriate.
Frequently Asked Questions
Does a publication ban protect the accused's identity too?
Generally, no. The bans discussed on this page are generally aimed at protecting the identity of a complainant or witness, not the accused.
Can I still talk about my case if a publication ban applies?
You can generally still discuss your own experience privately, such as with a counsellor or close family member, but a ban generally restricts public disclosure of identifying details, including on social media.
Is a publication ban the same as the courtroom being closed?
No. A publication ban restricts what can be published, but the courtroom generally remains open to the public. Full closure of a courtroom is a separate, rarer measure.
Do I have a say in whether a publication ban applies to me?
In many circumstances, yes, particularly for bans intended to protect a complainant, though the specific process and options should be discussed with the Crown attorney handling the case.
What happens if someone breaches a publication ban?
Breaching a publication ban can carry legal consequences. If you believe a ban has been breached, raise it with the Crown's office or police promptly.
Are publication bans automatic in every case?
No. Some bans are mandatory in specific circumstances, such as many sexual offence cases, while others are discretionary and depend on the court weighing the specific facts of the case.