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When and why do courts impose publication bans?

A concept picture of a publication ban. Stock photo by Getty Images

Publication bans and the rationale behind have been a burning topic among Canadians in recent years.

One of the more controversial cases came in 2014, when authorities first imposed, then rescinded a ban on publishing the name of Rehtaeh Parsons, a 17-year-old Nova Scotia girl who killed herself after being the victim of an alleged gang rape and unrelenting cyberbullying campaign.

Outrage spread when, in the same hearing where one assailant essentially received a slap on the wrist, the judge imposed a publication ban. A Halifax reporter started the proxy hashtag — YouKnowHerName — which quickly exploded on Twitter.

Typically, bans are meant to ensure privacy, to protect victims and to preserve the right to a fair trial.

However, those standards often clash with other values: freedom of expression; media freedom; and the “open court principle,” which essentially means the courts are public and transparent as possible.

So how, when and why are bans imposed?

Anyone can request a publication ban, but they also have to justify it. They do so by showing that the benefits of imposing a ban outweigh the harm caused by limiting freedom of expression. This is known as the Dagenais/Mentuck test, a combination of standards developed in two landmark Supreme Court of Canada cases and used in 2010’s Toronto Star Newspapers Ltd. v. Canada. In that case, the top court rejected a media challenge to the constitutionality of mandatory bans in bail hearings.

If someone can justify the need for a ban, a judge also evaluates how much to ban, the idea being to minimize the infringement on freedom of expression.

Publication bans are standard in youthcrime. The Youth Criminal Justice Act bans the publication of names or identifying information of a minor suspected of, charged with, or convicted of a crime, unless they receive an adult sentence, are a risk to re-offend or are currently at large.

One of the young men who was charged and later pleaded guilty in the Rehtaeh Parsons case, can’t be named because he was 18 at the time.

The YCJA also bans identifying underage victims or witnesses of crime.

In addition, the new Child, Youth and Family Services Act (2017) bans the publication of any information about a child protection hearing in Ontario.

Parsons’ own name was banned because she was a victim of child pornography. That’s also a standard judicial move to protect victims, even though in this case her name was already internationally known. The judge who imposed the ban even conceded that the ban “serves no purpose,” because her parents wanted her name used and the case was so widely known.

In cases like the one involving a Brampton, Ont. mother who burned her son, there’s no available information on why a ban was imposed. However, it often happens because identifying the mother would make it logically very easy to identify the victim.

In another recent case, the Toronto Star succeeded in overturning a ban on publishing the names of two parents who killed one of their children, the reason being that it would make the surviving siblings easily identifiable. However, the judge decided that a ban did not help those siblings and there was significant public interest in publishing “the names of adults convicted of criminal offences and particularly homicides.”

Ultimately, judges are always weighing important legal rights and principles in imposing bans, and they’re bound to remain a contentious issue. Media outlets constantly challenge them and many cases have reached the Supreme Court.

Read more:

Bans on publication

Toronto Star Newspapers Ltd. v. Canada