A publication ban is an order of the court that prohibits anyone from publishing or disseminating information, evidence, or the identity of witnesses in a trial. While in Canada the media do have a constitutional right to publish information about court cases, publication bans have been recognized as a legitimate limit to this right. A publication ban will be granted upon successful application by either the Crown Prosecutor, the defence or witness. The information that is protected by the publication ban can either be permanent or temporary.
A publication ban can also be imposed when it is mandated by statute. For example, the Youth Criminal Justice Act requires that information about a youth criminal justice matter can only be provided to those who have a direct interest in the case, such as the judiciary, counsel, the police, the victim(s), and the accused. A judge also has the authority, under the common law, to order a publication ban where (1) he or she deems it necessary for the proper administration of justice, and (2) where he or she is convinced that it would be worse to let this information be disseminated to the public than to keep it secret.
The decision as to whether the ban should be imposed will be made by balancing the right to freedom of expression, the proper administration of justice, and the right to a fair and public trial. Some examples of instances where a publication ban may be deemed appropriate is where the privacy of certain justice system participants should or needs to be protected in order to protect vulnerable witnesses, or to encourage witnesses who are scared to testify to provide statements in court.
The publication ban is strictly enforced by law and carries a heavy penalty for those who violate the order. Anyone who is found publishing information under a publication ban will be charged with a criminal offence.