Interdiction légale de publication d'informations sur l'identité

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Cette page a été mise à jour ou révisée de manière substantielle pour la dernière fois October 2023. (Rev. # 2409)

n.b.: Cette page est expérimentale. Si vous repérez une grammaire ou un texte anglais clairement incorrect, veuillez m'en informer à [email protected] et je le corrigerai dès que possible.

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General Principles

There are several types of publication ban permitted under the Criminal Code:

• An order restricting the publication of information identifying victims and witnesses (s. 486.5(1))
• An order restricting the publication of information identifying a justice system participant for certain offences (s. 486.5(2))
• An order restricting the publication of information identifying victims or witnesses of sexual offences (s. 486.4(2))
• An order restricting the publication of information identifying victims under the age of 18 of non-sexual offences (s. 486.4(2))
• An order restricting disclosure of witness identity (486.31)
• An order restricting publication of information identifying jury members (631)
• order restricting publication of evidence:
  • in the course of a bail hearing (517)
  • in the course of a preliminary inquiry (539)
  • in the course of a jury trial while jury is absent (648)

Under s. 486.6, anyone who violates any of these orders (s. 486.4(1), (2) or (3) or 486.5(1) or (2)) can be liable for a summary conviction offence.

Procedure

Applications for a publication ban, whether statutory or common law, should be made to the court at the level the case will be heard.

The form of evidence can be through testimony, affidavit, or submissions of counsel.

There is the suggestion that where the request is for a mandatory publication ban there is no need for notice to the media. Where the ban is discretionary notice is required.

General Publication Ban (s. 486.5(1),(2))

Protection of Victims, Witness or System Participants

Order restricting publication — victims and witnesses

486.5 (1) Unless an order is made under section 486.4 [ordonnance limitant la publication de l'identité de certaines personnes], on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

Justice system participants

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1) [ordonnance limitant la publication – les participants au système judiciaire – infractions énumérées], or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

Offences

(2.1) The offences for the purposes of subsection (2) [ordonnance limitant la publication – les participants au système judiciaire] are

(a) an offence under section 423.1 [intimidation of justice system participant], 467.11 [participation in Activities of Criminal Organization], 467.111 [recrutement de membres par une organisation criminelle], 467.12 [commission of offense for criminal organisation] or 467.13 [ordonner la commission d'une infraction pour organisation criminelle], or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

Limitation

(3) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is subject to the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by that order.

Limitation — victim, etc.

(3.‍1) An order made under this section does not apply in respect of the disclosure of information by the victim, witness or justice system participant when it is not the purpose of the disclosure to make the information known to the public.
[omis (4), (5), (5.1), (6), (7), (8), (8.1), (8.2) and (9)]
2005, c. 32, s. 15; 2015, c. 13, s. 19; 2023, c. 28, s. 3.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Section 486.5(1) provides the court with the authority to make an order "directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice."

While section 486.5(2) provides the authority to make an order to not reveal "information that could identify the justice system participant".

This can be applied for by a prosecutor, a victim or a witness, a judge or justice. (s. 486.5(1))

Procedure

486.5
[omis (1), (2), (2.1), (3) and (3.1)]

Application and notice

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

Grounds

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

Duties — judge or justice

(5.‍1) If the prosecutor makes an application for an order under subsection (1) or (2), the judge or justice shall

(a) if the victim, witness or justice system participant is present, inquire of them if they wish to be the subject of the order;

(b) if the victim, witness or justice system participant is not present, inquire of the prosecutor if, before the application was made, they determined whether the victim, witness or justice system participant wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (8.‍2).

Hearing may be held

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
[omis (7), (8), (8.1), (8.2) and (9)]
2005, c. 32, s. 15; 2015, c. 13, s. 19; 2023, c. 28, s. 3.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Under s.486.5(4), the application must be made in writing and notice must be given to the prosecutor, accused, or any other person affected by the order that the judge specifies. The application itself as well as the contents of a hearing on the application cannot be published.(s. 486.5(6), (9))

Requirement and Factors

"Proper Administration of Justice"

The order shall only be made where the applicant establishes that the order is "necessary for the proper administration of justice". (s. 486(1), (2), (5))

Factors

486.5
[omis (1), (2), (2.1), (3), (4), (5), (5.1) and (6)]

Factors to be considered

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

Conditions

(8) An order may be subject to any conditions that the judge or justice thinks fit.

Supplementary duty — judge or justice

(8.‍1) If an order is made, the judge or justice shall, as soon as feasible, inform the victims, witnesses and justice system participants who are the subject of that order of its existence and of their right to apply to revoke or vary it.

Duty to inform

(8.‍2) If the prosecutor makes the application, they shall, as soon as feasible after the judge or justice makes the order, inform the judge or justice that they have

(a) informed the victims, witnesses and justice system participants who are the subject of the order of its existence, its effects and the circumstances in which they may disclose information that is subject to the order without failing to comply with the order;

(b) determined whether they wish to be the subject of the order; and

(c) informed them of their right to apply to revoke or vary the order.

Publication prohibited

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6) [ordre restreignant la publication – audience à huis clos]; or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings.

2005, c. 32, s. 15; 2015, c. 13, s. 19.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Publication Ban for Victims and Witnesses of Sexual Offences

Section 486.4 provides for publication bans relating to sexual offences:

Order restricting publication  — sexual offences

486.4 (1) Subject to subsection (2) [ordonnance obligatoire sur demande – qui peut présenter une demande], the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151 [contacts sexuels], 152 [incitation à des contacts sexuels], 153 [exploitation sexuelle], 153.1 [personnes en situation d’autorité], 155 [inceste], 160 [bestialité], 162 [voyeurisme], 162.1 [publication, etc. non consensuelle d’une image intime], 163.1 [pornographie juvénile], 170 [père, mère ou tuteur qui sert d’entremetteur], 171 [maître de maison qui permet des actes sexuels interdits], 171.1 [rendre accessible à un enfant du matériel sexuellement explicite], 172 [corruption d’enfants], 172.1 [leurre d'enfants], 172.2 [entente ou arrangement — infraction d’ordre sexuel à l’égard d’un enfant], 173 [actions indécentes], 213 [' 'arrêt ou entrave à la circulation], 271 [agression sexuelle], 272 [agression sexuelle militaire ou causant des lésions corporelles], 273 [agression sexuelle grave], 279.01 [traite de personnes], 279.011 [traite de personnes âgées de moins de dix-huit ans], 279.02 [avantage matériel — traite de personnes], 279.03 [Rétention ou destruction de documents — traite de personnes], 280 [enlèvement d’une personne âgée de moins de 16 ans], 281 [enlèvement d’une personne âgée de moins de 14 ans], 286.1 [obtention de services sexuels potentiellement rétribution], 286.2 [avantage matériel provenant de la prestation de services sexuels], 286.3 [procuring], 346 [extorsion] or 347 [taux d'intérêt criminels], or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b) , the presiding judge or justice shall

(a)  as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

[omis (2.1) and (2.2)]

Child pornography

(3) In proceedings in respect of an offence under section 163.1 [pornographie juvénile], a judge or justice shall make an order directing that 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 within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

Limitation

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is subject to the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by that order.

Limitation — victim or witness

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public.
2005, c. 32, s. 15, c. 43, s. 8; 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18; 2019, c. 25, s. 190; 2023, c. 28, s. 2.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

---

Under s. 486.4(1), the court may make an order "directing that any information that could identify the complainant or a witness" not be published, broadcast or transmitted for any sexual offences (as listed in s. 486.4(1)(a)).

Any complainant or witness under the age of 18 years old must be notified of their right to make an application for an order, and if requested by the complainant, prosecutor or witness under 18 years of age, the judge must made the order. (s. 486.4(2))

Similarly, under 486.4(3), for charges under 163.1, the court must make an order in relation to any person who comprises the subject of child pornographic materials.

The bans under s.486.4 play an important part in protecting victims by removing the fear of publication of their names should they report the offence. The mandatory nature of the order provides certainty to the victim of non-publication.

Duration of Ban

A publication ban under 486.4(3) cannot be revoked by application of a third party and is not extinguished by the death of the protected person.

Effect on Previously Published Information

Where information falling within s. 486.4 has been published online before the issuance of a 486.4 publication ban has been ordered, the information does not need to be taken off-line.

Publication Ban for Non-Sexual Offences Relating to Victims Under 18 Years

486.4
[omis (1) and (2)]

Victim under 18 — other offences

(2.1) Subject to subsection (2.2) [ordonnance limitant la publication  – infractions non sexuelles – avis obligatoire lorsque la victime a moins de 18 ans], in proceedings in respect of an offence other than an offence referred to in subsection (1) [ordonnance limitant la publication de l'identité de certaines personnes], if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

Mandatory order on application

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1) [ordonnance limitant la publication de l'identité de certaines personnes], if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

[omis (3), (3.1) and (3.2)]

Limitation

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.
[omis (5)]
2005, c. 32, s. 15, c. 43, s. 8; 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 2019, c. 25, s. 190; 2023, c. 28, s. 2.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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In Relation to Youthful Victims

Section 486.4(2.2) requires that a judge order the publication ban of any information identifying an underage victim.

The mandatory nature of this provision may not be constitutional as it may violate the public's right to freedom of speech under s. 2(b) of the Charter.

Notification Requirements for Sexual Offences or Child Participants

486.4
[omis (1), (2), (2.1) and (3)]

Inquiry by court

(3.‍1) If the prosecutor makes an application for an order under paragraph (2)‍(b) or (2.‍2)‍(b) , the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.‍2) [Obligation d'informer].

Duty to inform

(3.‍2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the victim and any witness who are the subject of the order of its existence, its effects and the circumstances in which they may disclose information that is subject to the order without failing to comply with the order;

(b) determined whether they wish to be the subject of the order; and

(c) informed them of their right to apply to revoke or vary the order.

[omis (4) and (5)]
2005, c. 32, s. 15, c. 43, s. 8; 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 2019, c. 25, s. 190; 2023, c. 28, s. 2.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Statutory Ban on Disclosure Identity of Witness

Section 486.31 is an order prohibiting the disclosure of "information that could identify the witness" during the "course of the proceedings".

Non-disclosure of witness’ identity

486.31 (1) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, make an order directing that any information that could identify the witness not be disclosed in the course of the proceedings if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

Hearing may be held

(2) The judge or justice may hold a hearing to determine whether the order should be made, and the hearing may be in private.

Factors to be considered

(3) In determining whether to make the order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) the nature of the offence;

(c) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(d) whether the order is needed to protect the security of anyone known to the witness;

(e) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;

(e.1) whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities relating to national security or intelligence;

(f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;

(g) the importance of the witness’ testimony to the case;

(h) whether effective alternatives to the making of the proposed order are available in the circumstances;

(i) the salutary and deleterious effects of the proposed order; and

(j) any other factor that the judge or justice considers relevant.

No adverse inference

(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
2015, c. 13, s. 17, c. 20, s. 38.

– CCC (CanLII), (Jus.)

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Accused Identification Ban

There is no independent authority that allows an order to prohibit the publication of the accused's name.

The only circumstances where there can be a publication ban of the accused's identity is under s. 486.4 where it is for the purpose of protecting the identification of authorized persons named under s. 486.4 or related.

When such an application is made, the media should be given notice.

Jury Identification Ban

Under 631(6), the court or crown may order a publication ban on any information that may tend to identify jury members where it "is necessary for the proper administration of justice":

631
[omis (1), (2), (2.1), (2.2), (3), (3.1), (4), (5)]

Ban on publication, limitation to access or use of information

(6) On application by the prosecutor or on its own motion, the court or judge before which a jury trial is to be held may, if the court or judge is satisfied that such an order is necessary for the proper administration of justice, make an order

(a) directing that the identity of a juror or any information that could disclose their identity shall not be published in any document or broadcast or transmitted in any way; or

(b) limiting access to or the use of that information.

R.S., 1985, c. C-46, s. 631; R.S., 1985, c. 27 (1st Supp.), s. 131; 1992, c. 41, s. 1; 1998, c. 9, s. 5; 2001, c. 32, ss. 38, 82; 2002, c. 13, s. 52; 2005, c. 32, s. 20; 2011, c. 16, s. 7.

– CCC (CanLII), (Jus.)

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Variation or Revocation of Ban

Application — vary or revoke

486.‍51 (1) If a person who is the subject of an order made under section 486.‍4 [ordonnance limitant la publication de l'identité de certaines personnes] or 486.‍5 requests that the prosecutor have it varied or revoked, the prosecutor shall, as soon as feasible, make an application to vary or revoke the order on their behalf.

Order — vary or revoke

(2) If an application to vary or revoke an order made under section 486.‍4 [ordonnance limitant la publication de l'identité de certaines personnes] or 486.‍5 is made by the person who is the subject of the order or by any other person, including a prosecutor, who is acting on their behalf, the court that made the order or, if that court is for any reason unable to act, another court of equivalent jurisdiction in the same province shall, without holding a hearing, vary or revoke the order, unless the court is of the opinion that to do so may affect the privacy interests of any person other than the accused who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person.

Hearing

(3) If the court is of the opinion that varying or revoking the order that is the subject of an application referred to in subsection (2) may affect the privacy interests of any person other than the accused who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person, the court shall hold a hearing to determine whether the order should be varied or revoked.

Factor

(4) In order to determine whether the order should be varied, the court shall take into account whether it is possible to do so in a manner that protects the privacy interests of any other person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person.

Notice

(5) The applicant is not required to provide notice of the application to vary or revoke the order to the accused.

Submissions

(6) The accused shall not be permitted to make submissions in relation to the application.

Notice of change

(7) If the order is varied or revoked, the prosecutor shall notify the accused.

2023, c. 28, s. 4.

– CCC (CanLII), (Jus.)

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Power of Rescission Prior to October 2023

A court has power to rescind its own publication ban. Bans under s. 486.4(3) for offences relating to child pornography cannot be rescinded.

Bans under a mandatory provision cannot be rescinded until such time that the circumstances requiring the ban change.

Appeals by Media of Publication Ban Orders

Section 40 of the Supreme Court Act permits the media to appeal an order of a superior court judge.

Other Related Topics

• Statutory Publication Ban on Evidence
• Review Board Publication Bans
• Publication Bans in Relation to Appeals
• Publication Bans Relating to Youth Prosecutions
• Breach of Publication and Access Bans (Offence)

See Also

• Sealing and Unsealing Judicial Authorizations
• Testimonial Aids for Young, Disabled or Vulnerable Witnesses