Type of document: Prosecution Directive
Effective date: November 14, 2017

Public access to the justice system is a hallmark of a democratic society. Open courts allow everyone to see that justice is administered in a principled manner in accordance with the rule of law.

The use of publication bans and sealing orders is an exception to the open court principle. Publication bans prevent information from being published in any document, broadcast or transmitted in any way. Sealing orders restrict access to courts and court documents in limited circumstances.

The appropriate use of publication bans, applications to prohibit or restrict access to court exhibits and to exclude the public may be necessary to maintain integrity of the process, ensure security, protect privacy or prevent trauma or intimidation of witnesses. A sealing order may be necessary to protect interests essential to the administration of justice such as the integrity of ongoing police investigations or confidential information.

Publication bans may be automatic, mandatory upon application or ordered at the discretion of the court. Sealing orders may be automatic or made at the discretion of the court.

Factors to consider

The Prosecutor should consider all the circumstances when determining whether to seek a publication ban, sealing order, or exclusion of the public. Relevant factors may include the following:

  • encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice system
  • safeguarding the interests of witnesses under 18 years of age
  • enabling witnesses to give a full and candid account when testifying
  • protecting witnesses from intimidation or retaliation
  • whether there are effective alternatives to making the order
  • potential negative effects of an order.

Publication bans

Sexual offences

Identity of the victim

The Criminal Code directs that in sexual offences the court shall make an order prohibiting the publication of any information that could identify the victim (or witness under the age of 18) upon application of the Prosecutor, the victim or any witness.

The Prosecutor must seek an order prohibiting the publication of any information that could identify a victim (or a witness under the age of eighteen) at the earliest opportunity. If the victim of a sexual offence wishes to have their identity known, the issue of revoking the publication ban can be revisited at any stage in the proceedings.

Sexual history

The Criminal Code prohibits publication of information and evidence tendered on an application to admit evidence of a victim’s sexual history in cases involving sexual offences. Publication of the decision and reasons of the court is also prohibited unless the judge orders that they may be published, after taking into account the victim’s right to privacy and the interests of justice or if the evidence is found to be admissible.

Production of private records (third party records)

The Criminal Code prohibits publication of information and evidence tendered on an application for production of records containing private information in relation to a victim or witness in cases involving sexual offences. Publication of the decision and reasons of court is also prohibited unless the judge orders that they may be published, after taking into account the interests of justice and the privacy interests of the person to whom the record relates.

Reference should be made to the Sexual Offences against Adults Directive.

Child pornography

The Criminal Code directs that the court shall make an order prohibiting the publication of any information that could identify a witness who is under the age of eighteen years or any person who is the subject of a representation, written material or a recording that constitutes child pornography. Prosecutors must apply for a sealing order in respect of any exhibit containing material alleged to be child pornography. Reference should be made to the Internet Child Exploitation Directive.

Youth Criminal Justice

The Youth Criminal Justice Act prohibits the publication of any information that could identify any accused young person under 18 years of age. The Youth Criminal Justice Act also prohibits the publication of any information that could identify a person under 18 years of age who was a victim of, or appeared as a witness in connection with, an offence allegedly committed by a young person. Reference should be made to the Youth Criminal Justice: Resolution Discussions and Sentencing Directive.

Victim under age eighteen

The Criminal Code directs that in all offences involving a victim who is under the age of 18 the court shall make an order prohibiting the publication of any information that could identify the victim, upon application of the Prosecutor or the victim.

The Prosecutor must seek a court order prohibiting the publication of any information that could identify a victim who is under the age of eighteen at the earliest opportunity.

Reference should be made to the Offences against Children Directive.

Judicial interim release (bail)

Upon application of the accused, the Criminal Code directs that the court shall make an order prohibiting the publication of evidence taken, representations made and the decision of the court, until the accused has been discharged at a preliminary inquiry or the trial of the accused has ended.

Upon application of the Prosecutor, the Criminal Code directs that the court may make an order prohibiting the publication of evidence taken, until the accused has been discharged at the preliminary inquiry or the trial of the accused has ended.

Preliminary inquiry

The Criminal Code prohibits the publication of evidence pertaining to the existence or nature of any admission or confession tendered at a preliminary inquiry until an accused has been discharged after the preliminary inquiry or the trial has ended.

Upon application of the accused, the Criminal Code directs that the court shall make an order prohibiting the publication of evidence taken, until the accused has been discharged at the preliminary inquiry or the trial of the accused has ended.

Upon application of the Prosecutor, the Criminal Code directs that the court may make an order prohibiting the publication of evidence taken, until the accused has been discharged at the preliminary inquiry or the trial of the accused has ended.

Jury trials

The Criminal Code prohibits the publication of evidence heard in the absence of the jury prior to the commencement of the jury’s deliberations.

Upon application by the Prosecutor or on its own motion, the court may prohibit publication of the identity of a juror or any information that could disclose the juror’s identity.

Discretionary publication bans

In all other offences, the Criminal Code permits the court to consider banning publication of any information that could identify a victim over 18 years of age and a witness of any age at any stage of the prosecution. Further, publication bans may also be ordered in relation to justice system participants in cases involving criminal organization, terrorism, and certain Security of Information Act offences.

Prior to seeking a discretionary publication ban under the provisions of the Criminal Code, the Prosecutor should consider the open court principle and the factors as set out in the Criminal Code. Discretionary publication bans are only sought in exceptional circumstances where the grounds can be clearly articulated.

The Prosecutor, victim or witness shall make written application, with notice to the accused, the media and any other affected person. The court may make the order if the court is of the opinion that the order is in the interest of the proper administration of justice.

Similarly, with notice to the media and any other affected person, written applications for publication bans can also be made under the common law.

Requests by victim to revoke the publication ban

There may be occasions when a victim over the age of eighteen seeks to revoke the publication ban. A judge has the authority to lift the publication ban only when the Prosecutor and victim both consent to revoke the ban. Prior to consenting to revoke a publication ban, the Prosecutor should consider all the circumstances including the following:

  • nature of the publication ban and circumstances of the case
  • the wishes of the victim
  • whether the victim has had an adequate opportunity to assess all of the ramifications of the publication of their identity
  • publication of the victim’s name might tend to identify other victims or witnesses, who want protection of the publication ban
  • publication of the victim’s identity might prejudice the prosecution or might otherwise have an adverse effect on the administration of justice.

Sealing orders

A sealing order prohibits access to information by anyone other than the parties identified in the order. A sealing order may be mandated by the Criminal Code or imposed at the discretion of the court.

The Criminal Code provides that all documents relating to an application for a wiretap authorization are subject to a mandatory sealing order. The Criminal Code provides that the court issuing a search warrant or other judicial order may seal the supporting material.

In determining if a sealing order should be requested or an existing sealing order lifted, the Prosecutor must consider if the order is necessary to:

  • protect an ongoing police investigation
  • protect the identity of a confidential informer (see: Confidential Informers Directive)
  • protect intelligence-gathering techniques
  • protect the interests of innocent parties
  • protect privacy interests.

The Prosecutor must also consider whether a partial or time limited sealing would be appropriate.

Court exhibits

Judicial documents and court exhibits, including Victim Impact Statements, are generally accessible to the public. The Prosecutor should seek to restrict access in any case where public access to court exhibits may undermine the right to a fair trial, violate privacy interests or interfere with the administration of justice. A sealing order must be sought to restrict access to exhibits containing child pornography.

Exclusion of the public

The Criminal Code permits the court to order the exclusion of the public from the courtroom for all or part of criminal proceedings. In determining if the public should be excluded from the courtroom, the court shall consider all the circumstances including society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in criminal proceedings and the ability of the witness to give a full and candid account.

Prior to seeking an order to exclude the public, the Prosecutor should consider whether effective alternatives to seeking the order are available in the circumstances. Reference should be made to the Testimonial Aids and Accessibility Directive.