Publication Bans

• Author: Steve Coughlan/Alex Gorlewski
• Pages: 256-263

256 Preliminary Matters / Pre-trial Motions

2.5(a) Publication Bans

Is a statutory publication

ban available?1

Yes

No

Seek the appropriate

statutory ban (see the

table in note 1)

Yes

No

Is a publication ban

necessary to prevent a

serious risk to the proper

administration of justice?2

Publication ban

unavailable

Judge may order

publication ban

Would the salutary eects

of the ban outweigh the

deleterious eects on other

rights and interests?3

Yes

No

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 Charter’s 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