In October 2023, the federal government gave royal assent to Bill S-12, which made significant changes to how publication bans operate. As I wrote last year, these changes came about as the result of a growing number of situations in which sexual assault survivors were unable to share their stories because publication bans were in place, and one particularly egregious case in which the survivor was criminally charged for breaching the pub ban when she shared the transcript of the criminal trial with friends and family members.
With the passage of Bill S-12, some significant improvements have been made to how the Criminal Code deals with publication bans; in particular, in sexual assault cases. Survivors, known as complainants in the criminal process, will now be more involved in direct conversations about whether or not a pub ban should be imposed, both at the beginning of and throughout the legal process. The process for amending or revoking a pub ban has been simplified and streamlined. The law has been clarified about when survivors can share information about themselves and when prosecution for breaching a ban should not occur.
Here’s a user’s guide to how publication bans work now, starting with a quick look at what publication bans are.
What’s a publication ban?
A publication ban is a criminal court order that prohibits anyone from publicly sharing information about a case in a way that could identify the complainant. It applies to everyone who might have information about the case: the judge and lawyers, court staff, the complainant, the accused, witnesses and members of the public, as well as journalists and reporters.
It’s important to remember that a publication ban applies to the complainant as well as to other people.
Its purpose is to protect the privacy of the complainant, with the hope that this will encourage survivors to report sexual violence to the police. A pub ban is not intended to protect the privacy of the accused.
Publication bans remain in place even after the criminal case is over, regardless of its outcome.
A publication ban doesn’t make the case secret: people can attend the trial and access the court records, including the transcript. Journalists and others can write about the case. The publication ban prevents people from publishing, broadcasting or transmitting information that could identify the complainant.
Pros and cons
Some complainants want the privacy offered by a publication ban, while others do not. There is no right or wrong, which is why it’s so important that the law now requires complainants to be informed early in the process about the pub ban option and how they can apply for one as well as to have one revoked or amended. The choice, as it should, now rests mostly with the complainant.
A publication ban can be a positive thing if a complainant wants their identity to be kept private – either for a specific period of time, at the end of which they can apply to have it revoked or amended, or forever. When a publication ban is in place, the complainant’s name or other identifying information cannot appear in any public place: online, in a newspaper, on radio or television, and so on.
A complainant who wants to speak publicly about their case will probably not want a publication ban, so they can either tell the Crown or judge not to put one in place or, if one is already in place, can apply to have it revoked or amended.
How does one get put in place?
The procedure for putting a publication ban in place is set out in section 486.4 of the Criminal Code. The judge in the trial makes the order if the complainant or the Crown asks for one. Most often, in sexual assault cases, the Crown makes the request.
Ideally, the Crown will speak with the complainant before seeking a publication ban, to ask if they want one. If the complainant is in the courtroom, the judge is responsible for letting them know that they can ask for the ban.
If the complainant is not present, the Crown is expected to have made a reasonable attempt to speak with them to get their approval before proceeding to ask for a publication ban. If they want the protection of one during the trial, but want to be able to talk about the case once it’s over, they can apply for one and then apply to have it revoked later.
When a complainant asks for a publication ban, the judge must grant it. In most cases, when a complainant says they don’t want one, even if the Crown wants one, the judge will not grant it.
It’s up to the judge and/or the Crown to make sure the complainant knows about the publication ban. Victim support program staff should also be able to provide this information.
What happens if someone violates a pub ban?
Violating a publication ban may be a criminal offence. If a journalist, for instance, publishes information about a case that identifies the complainant when a pub ban is in place, they could be charged criminally and, if they are found guilty, could face a fine or term of imprisonment.
Special protections exist for complainants who share their story in some circumstances; for instance, if they breach the ban when speaking with a legal or health care professional or to someone in a trusted relationship with them, or if their disclosure of information was made in any forum and does not “recklessly or intentionally” identify anyone else protected under the ban.
Can a complainant get a publication ban removed?
Yes. A complainant can apply to the court at any time during or after the criminal proceeding to have the publication ban revoked or amended. The Crown is required to make the application on the complainant’s behalf, regardless of their own wishes and, with very limited exceptions, once the application is made, the judge must revoke or amend the ban. This is to happen without a hearing, unless the court believes that to amend or revoke the ban would affect the privacy interests of any other person who is protected by it.
The accused is not a party to this application and has no say in whether or not the ban is revoked.
Bill S-12 is an excellent example of a positive collaboration among advocates, survivors and decision-makers that has led to important and positive changes to the law; changes that will give sexual assault survivors back their voices while still offering the protection of privacy to those who want that.