The open courts principle is a pillar of the Canadian legal system. In most instances, court proceedings are open to the public and may be reported in full. However, there are instances when media and the public cannot publish information from the Courts. These are called publication bans or in some cases, confidentiality orders.
Publication bans restrict what information a person can share publicly about a court case. They help prevent serious risks to the proper administration of justice, including an accused person's right to a fair trial. They also protect vulnerable individuals, such as complainants in sexual assault matters, and privileged or sensitive information.
This area of law is a complicated one, and members of the public and media are urged to familiarize themselves with the subject, as there can be serious consequences for breaching publication bans.
Notice to the Media
Some publication bans are mandatory (also referred to as statutory) under the Criminal Code, while others are at a judge's discretion. In Nova Scotia, individuals applying for discretionary publication bans are required to provide notice to the media, usually three clear days' notice or more. This ensures members of the media are aware of the application and have enough time to prepare a challenge, if they wish to do so.
The ONLINE FORM and information about the notification process are provided at the bottom of this page. If you would like to subscribe to receive notices of applications for discretionary publication bans and sealing orders, email the Judiciary's Director of Communications.
Publication Bans in the Nova Scotia Courts
Some publication bans are mandatory (also referred to as statutory) under the Criminal Code. Below is a list of the most common statutory publication bans used in the Nova Scotia Courts.
In general, the federal Youth Criminal Justice Act (YCJA) and the provincial Youth Court Act (YJA) prohibit the publication of any information that would lead the public to identify the accused youth or any child or young person who is a victim or witness in a YCJA or YJA matter (not just his or her name). (see s. 110 and 111 of the YCJA and s. 30 of the YJA)
Matters under the Children and Family Services Act
Information that has the effect of identifying a child witness, a child participant in a hearing, or a child who is the subject of a proceeding held under the provincial Children and Family Services Act (CFSA) cannot be published or made public, nor can information that has the effect of identifying a parent, guardian, foster parent, or relative of the child. (See Section 94(1) of the CFSA) A ban may also be ordered if the Court is satisfied that publication would cause emotional harm to a child who is a participant, a witness, or is the subject of the proceeding.
(See Section 94(2) of the CFSA)
Evidence in a Bail Hearing
Statutory bans are usually imposed on the publication of evidence presented at a bail hearing. They are compulsory if requested by the defendant and discretionary if requested by the prosecutor. They cover the content (evidence and information) of the hearing, as well as the judge’s reasons for their decision. However, these bans are temporary. They expire at the end of a preliminary inquiry if the accused is discharged (not sent to trial) or when the trial has ended if the accused is tried. In the case of a jury trial, the ban expires when the jury is sequestered and/or begins its deliberations. (see Criminal Code s. 517(1))
Evidence in a Preliminary Inquiry
Statutory bans are normally imposed on the publication of evidence taken at a preliminary inquiry. They are compulsory if requested by the defendant and discretionary if requested by the prosecutor. They are also temporary, expiring at the end of the proceedings if the accused is discharged (not sent to trial) or when the trial has ended if the accused is tried. In the case of a jury trial, the ban expires when the jury is sequestered and/or begins its deliberations. (See Criminal Code s. 539)
Proceedings of a Voir Dire
In jury trials, no information regarding any portion of the trial at which the jury is not present, including any evidence taken, can be published until the jury has been sequestered and begins its deliberations. (See Criminal Code s. 648(1)) Prior to that, only the fact that a voir dire was conducted can be published.
Admissibility of Evidence of Complainant’s Prior Sexual Activity
An application under s. 276 of the Criminal Code (evidence of a complainant’s prior sexual activity) is another example of a proceeding, or part of a proceeding, covered by a statutory publication ban. This ban is broad and even prohibits the publication of the judge’s decision and his or her reasons. (See Criminal Code s. 276.3 (1))
Proceedings Regarding Sexual Offences
The identity of alleged victims, also known as complainants, and witnesses under the age of 18, are usually protected by publication bans in such proceedings. The judge is required to impose the ban if requested by the alleged victim, a young witness or the prosecutor.
(See Criminal Code s. 486.4)
Notice of an Application for a Publication Ban
In Nova Scotia, individuals applying for discretionary publication bans are required to provide notice to the media, usually three clear days' notice or more. This ensures members of the media are aware of the application and have an opportunity to contest it, should they wish to do so.
This requirement is in response to the Supreme Court of Canada ruling in Dagenais v. Canadian Broadcasting Corporation ((1994), 3 S.C.R. 835). In that decision, the Supreme Court directed that judges "should give the media standing (if sought)" and may direct that third parties affected by the proposed ban - invariably, the media - be given notice.
To enable this process, the Nova Scotia Courts established an email notification system that allows journalists and other interested parties to subscribe to receive notices of applications for discretionary publication bans, confidentiality or sealing orders, requests for in camera proceedings, and permission to identify parties by pseudonyms.
Rule 85.04 of the Civil Procedure Rules of Nova Scotia, the Court of Appeal's Practice Directive on Orders Restricting Media Reporting or Public Access, and the Provincial Court's Practice Direction on Publication Bans all require that reasonable notice be provided to media when there is an application for a discretionary publication ban, confidentiality order, or a request to seal a document or court file. This ensures the media are aware of the application and have enough time to prepare a challenge, if they wish to do so.
Excluding exceptional circumstances, applicants are expected to provide at least three clear days' notice to the media. This ensures members of the media are aware of the application and have sufficient time to prepare a challenge, if they wish to do so.
These notices are emailed directly to journalists, prosecutors, lawyers, and other members of the legal community who have subscribed to the service. Please note that subscribers will have access to all the information you include in your form, including addresses and contact information.
How do I provide notice to the media?
Simply fill out this ONLINE FORM. Email a copy of the completed form to the Executive Office of the Nova Scotia Judiciary at email@example.com. Staff will review the information and if the form is complete, an email notice will be sent to all subscribers.
It is important to note that this process is only for notifying the media of an application for a publication ban. It is not a substitute for the usual requirements to bring a motion or an application before a judge. Unless otherwise directed by the Court, a Notice of Application, Supporting Affidavit, and Draft Order must also be filed with the Court before the matter will be scheduled.