Letter addressed to the Honourable David Lametti regarding Publication Bans

May 27, 2021

The Honourable David Lametti, P.C., Q.C.
Minister of Justice and Attorney-General of Canada
284 Wellington Street
Ottawa, Ontario K1A 0H8

RE: Publication bans

Dear Minister Lametti,

As you know, a publication ban is an order the Court makes that prevents anyone from publishing, broadcasting, or sending any information that could identify a victim, witness, or other person who participates in the criminal justice system. The publication ban is intended to allow victims, witnesses, and others to participate in the justice system without suffering negative consequences. In sexual assault cases, publication bans are mandatory where the victim is under 18 years old and discretionary upon application for adults^*. Publication bans are meant to encourage sexual assault victims to come forward, protect their identity, and ensure they are protected from any public scrutiny.

I am writing to share my views regarding the need to update sections 486.4 to 486.6 of the Criminal Code to ensure complainants have increased personal agency in matters related to the protection of their own identity. The process to remove an order restricting publication must be simplified for survivors. In our efforts to ensure that we protect sexual assault victims from further harm, we must also ensure that publication bans cannot be used to criminalize or punish victims. Lastly, we require more data about how publication bans are accessed and utilized across jurisdictions, including data related to when survivors ask for the court order to be lifted.   

We know that survivors of sexual assault face many challenges when seeking justice. Research regarding survivors’ experiences with the justice system is disheartening. Victims and survivors are often dissatisfied with their experience, and may be subject to blame, disbelief, or interrogation when reporting the assault to police.¹ In many cases, victims and survivors have reported that interactions with the legal system have led to the experience of secondary victimization, which occurs when victims are further traumatized by the response of criminal justice professionals.² We also know that the majority of sexual assault cases go unreported according to the 2014 General Social Survey, with only 5% of cases reported to police.

Given these statistics, it is especially important for sexual assault survivors to have their voices heard, and in some instances, publication bans may serve to silence victims. Although publication bans have an important purpose for many complainants who are survivors of sexual assault, this is not true for every single survivor. Some victims have indicated that they do not want to be anonymous to the public, that they want people to know they are a person, with a name and a lived experience. Taking a trauma-informed approach recognizes that not every sexual assault survivor wants their identity protected with a publication ban. Complainants must have the right to autonomy to make their own informed choices. In order to empower complainants and ensure personal agency when imposing an order restricting publication, I recommend the Court be required to disclose information explaining how to remove the order in the future, if desired.

In my view, more information is required to define ‘publishing’, ‘broadcasting’ or ‘transmitting information to identify the victim or a witness’. Certainly, survivors who share information following a conviction in their case, with their personal support network through email as an example, should not face legal or financial consequences as a result. Advocates have rightly noted that publication bans are not intended to be bilateral in terms of who they protect: while survivors of sexual violence have a right to privacy through publication bans, those convicted of sexual assault do not.³I recommend the creation of a specific subsection listing what victims are entitled to do with information in their case (such as sharing with family members and other support persons) to ensure that complainants and witnesses clearly understand what is permissible. It should also be made clear in section 486.6 that violating a publication ban cannot be applied to victims either at all, or in certain circumstances.

My Office has heard from numerous victims and survivors that is it a complex process to get a publication ban lifted in their case. Since courts rely on their inherent jurisdiction to provide the jurisdiction to lift a publication ban, an application to the court is required. Although publication bans are put in place to help protect victims, some survivors want their voice heard, yet they face barriers such as returning to court, and spending additional time and energy. I recommend the Criminal Code be amended to provide a simple procedure for a victim to apply to lift a publication ban, including a process that does not require a court appearance, in all cases.

Finally, as highlighted in our 2020 Progress Report on the Canadian Victims Bill of Rights, there is currently no available data related to the use of publication bans.⁴ Due to this, it is hard to determine how well this provision is working for victims of crime. Jurisdictions across Canada should collect, record and publish data in regards to orders restricting publication for children and adults.

For children, where publications bans in their cases are mandatory, it is imperative to ascertain how many publication bans are ordered annually and in what cases. For adults, having data relating to how many court orders are sought by victims, and what kind of offence type the case involves is important. The data should also include who the individual is who sought the publication ban namely a direct victim, witness, juror, police officer, or police informant (e.g., in offences that involve criminal organizations, terrorism, and national security). The data should also reflect how many publication bans have been sought but denied by the courts. I recommend Department of Justice Canada officials work with provincial/territorial Attorneys General to ensure all jurisdictions collect and publish data on orders restricting publication for adults and children, and this should include, but not be limited to, offence type, number of requests, number that have been denied, who is requesting them, and how many victims are being informed of the right to request a publication ban.

Experts and advocates remain concerned about how sexual assault is dealt with by the criminal justice system. When it comes to orders restricting publication, it is necessary for police, prosecutors, and judges to be mindful of the needs of survivors/complainants in each individual case, and ensure that the system is not re-victimizing, punishing, criminalizing, or silencing victims or complainants.

Thank you for your consideration of this important issue and I welcome your response on the matter.

Sincerely,

 

Heidi Illingworth
Federal Ombudsman for Victims of Crime

 

* June 30, 2022 – Please note the following clarification: In sexual assault cases, publication bans are mandatory upon application with respect to victims of any age, and witnesses under 18 years old. Witnesses over the age of 18 can apply for a publication ban for the judge’s consideration.

---

---

Response

August 13, 2021

 

 

Ms. Heidi Illingworth

Federal Ombudsman for Victims of Crime

P.O. Box 55037

Ottawa ON K1P 1A1

 

Dear Ms. Illingworth:

 

Thank you for your correspondence of May 27, 2021, concerning the existing law and processes related to publication ban orders made under sections 486.4 and 486.5 of the Criminal Code. I regret the delay in responding.

 

I appreciate the time you have taken to share your recommendations. I agree that there are complex aspects of the current regime. I also agree that, in some cases, the current regime is daunting for victims and others subject to publication bans who wish to have them lifted. Please be assured that I have shared your recommendations with Department of Justice Canada officials for their consideration.

 

Under section 486.4 of the Criminal Code, the court must inform victims of crime under the age of 18 of their right to seek a publication ban. The section also requires the court to inform all victims and witnesses under the age of 18 of enumerated sexual and other offences that they have the right to seek a publication ban. In either case, if the victim or witness asks for a publication ban to be imposed, the court must order it. Additionally, section 486.4 provides that a court must make an order protecting the identity of witnesses under the age of 18 or of any person depicted in child pornography.

 

Similarly, section 486.5 provides that, if it believes that doing so is in the interest of the proper administration of justice, the court may order a publication ban to protect the identity of any other victim over the age of 18, any other witness, and, for certain offences, justice system participants.

 

Publication bans promote the truth-seeking function of the courts. They protect the privacy of victims of sexual assault and other vulnerable victims and witnesses, and encourage the reporting of crimes. It is customary for the Crown to consult with the victim when applying for a ban, though that may not always be possible at the outset. Although many victims want this protection, I acknowledge that some do not.

 

While publication bans prevent the publication or broadcast of any information that may identify a victim, including one of a particular sexual offence, they generally do not prevent victims from speaking about their experiences if they wish. The publication ban applies to dissemination of information that can identify the person subject to the ban to the general public. This could include information in a newspaper, a broadcast, or online.

 

Publication bans remain in effect indefinitely unless the order specifies otherwise. An application to vary or revoke a publication ban can be made before the trial judge at any time while the proceedings are in progress or to the superior courts at any time after the conclusion of the case. Furthermore, an order can be varied or revoked if there has been a relevant material change in circumstances. In cases where a publication ban was ordered solely to protect the identity of a victim or witness, their wish that they no longer want the order to be in place would, as case law demonstrates, be a material change in circumstances justifying the lifting of the order.

 

Thank you again for writing. Our government remains committed to reviewing the implementation of the Criminal Code and its impacts on victims of crime.

 

Respectfully,

 

 

 

 

The Honourable David Lametti, P.C., Q.C., M.P.

(he/him)

Minister of Justice and Attorney General of Canada