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.
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.
1 Clarke, B. (2020). Survivors of sexual violence and the criminal justice system: Reviewing a legacy of harm, the justice gap, and recommendations for advocates and allies. St. John’s Status of Women Council
2 Hill, J.K. (2009). Working with Victims of Crime: A manual applying research to clinical practice. Ministry of Justice Canada
4 Office of the Federal Ombudsman for Victims of Crime. (2020) Progress Report: The Canadian Victims Bill of Rights, Government of Canada