Publication Bans

AuthorSteve Coughlan/Alex Gorlewski
256 Preliminary Matters / Pre-trial Motions
2.5(a) Publication Bans
Is a statutory publication
ban available?1
Seek the appropriate
statutory ban (see the
table in note 1)
Is a publication ban
necessary to prevent a
serious risk to the proper
administration of justice?2
Publication ban
Judge may order
publication ban
Would the salutary eects
of the ban outweigh the
deleterious eects on other
rights and interests?3
As a rule, all judicial proceedings (including criminal proceedings) are open
to the public, who is in turn free to observe and report on them. This entitle-
ment is known as the “open court principle.” It is considered a “hallmark of a
democratic society,” because it is thought to help ensure that the justice sys-
tem will operate independently and impartially, and to maintain the public’s
condence in, and understanding of, the administration of justice: Vancouver
Sun (Re), 2004 SCC 43 at paras 23–25. This, in turn, is integral to the legitimacy
of judicial proceedings and outcomes, and a major reason why the parties to
legal disputes generally abide by the results (at para 25). Although the open
court principle has longstanding status as a common law rule, it now has con-
stitutional force, because it is considered essential to the Charters section 2(b)
guarantees of freedom of expression and the press, both in protecting the me-
dia’s role in disseminating information about court proceedings, and the pub-
lic’s ability to receive it (at paras 24 and 26). See also Edmonton Journal v Alberta
(AG), [1989] 2 SCR 1326 at 1336–40.
Notwithstanding the general applicability of the open-court principle, trial
judges can, in some circumstances, ban the publication of certain information

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