Lifting or varying publication bans

Last revised April 04, 2024

There is no uniform process to lift a publication ban; the process depends on the kind of publication ban that is in place and the reasons it was applied. The Department of Justice website provides a good overview explaining what publication bans are, why they exist, and the legislative authority that determines their application. Section 1.3 of the Court of Appeal Record and Courtroom Access Policy also outlines what they are and how they are applied.

Types of bans

There are three different types: mandatory statutory bans, discretionary statutory bans and common law bans. Mandatory bans apply automatically or must be granted upon request by a party. Discretionary bans may be judicially ordered depending on the circumstances of the case. A list of common bans in Appendix “B” of the Court of Appeal Record and Courtroom Access Policy provides a breakdown of which statutory bans are mandatory or discretionary, and their degree of permanence in general terms. Common law bans are judicially ordered in cases where restrictions on publication are deemed appropriate but for which no specifications exist within statutory law. Most commonly they are sought to protect a defendant's right to a fair trial in a criminal case.

Statutory bans have legislative authority and will be found in federal statutes, whereas authority for common law bans derives from prior judicial decisions. They generally deal with media-related prohibitions not already covered by legislation. A frequently cited example of a common law publication ban is Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835, 1994 CanLII 39 (SCC). This case involved a restriction on making a film adaptation for a television mini-series based on the case, a circumstance for which there is no legislative authority.

Lengths of bans

The terms of each ban will vary depending on the order granted by the judge – there are no defined timelines or set of parameters that apply to all cases. However, some are applied indefinitely while others are temporary. Particular Criminal Code, RSC 1985, c. C-46 and Youth Criminal Justice Act, SC 2002, c. 1 bans are considered permanent but may be lifted by court order, mostly those dealing with protection of privacy. The Youth Criminal Justice Act, SC 2002, c. 1 includes exceptions to bans protecting identities in cases where a youth consents to being identified (ss. 110(3), 110(6) and 111(2)), if the youth is sentenced as an adult (s. 110(2)), or if a youth is a danger to others and not yet apprehended (s. 110(4)). In all other circumstances, a court order is required to have one lifted.

Bans meant to protect a defendant’s right to a fair trial tend to be temporary. Mostly these fall under Criminal Code, RSC 1985, c. C-46, ss. 487.2, 487.3, 517(1), 537(1)(h), 539(1), 542(2), 648(1), and 649. Generally they expire once the risk of affecting the trial has passed, either by way of a verdict being reached, admission of guilt, or dismissal.

Applications of lift statutory bans

The criminal code outlines the process to apply for discretionary publication bans, but there is no equivalent for the process to have a ban lifted – it is only stated that a court order is needed. In order for the court to grant an application to lift a ban, an applicant must explain how the circumstances that necessitated the ban in the first place have changed. In writing an application for an order to lift a ban, the applicant can use the same sections of the relevant statutes to craft their argument. Appendix “B”  of the Court of Appeal’s Access Policy is a good resource to use as they list the sections of both the Criminal Code, RSC 1985, c. C-46 and the Youth Criminal Justice Act, SC 2002, c. 1 that authorize automatic bans or those that can be used to apply discretionary bans. Youth Criminal Justice Act, SC 2002, c.1 ss. 110(3), 110(4), 110(6), 111(2), and 111(3) are all sections under which applications can be made to lift bans relating to young offenders, witnesses or victims.

Applications to lift common law bans

If you would like to find examples where publication bans have been granted or lifted in common law, you can do a case law search in a legal database such as CanLII or Quicklaw. CanLII is freely accessible from anywhere with an internet connection, or you can access subscription databases such as Quicklaw or WestlawNext and print case law reporters from within Courthouse Libraries BC locations.

Content reviewed April 4, 2024