Criminal Code of Canada - section 278.9(1)

section 278.9(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section prohibits the publication or transmission of certain information related to applications and hearings under section 278.3 to 278.7, unless authorized by a judge.

SECTION WORDING

278.9 (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following: (a) the contents of an application made under section 278.3; (b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) or 278.6(2); or (c) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.

EXPLANATION

Section 278.9(1) of the Criminal Code of Canada is a publication ban that restricts the dissemination of information related to proceedings under sections 278.3, 278.4(1), 278.5(1), 278.6(2), 278.7(1), and 278.8. Specifically, no one shall publish in any document or broadcast or transmit in any way the contents of an application made under section 278.3, any evidence taken, information given, or submissions made at a hearing under subsection 278.4(1) or 278.6(2), or the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published. The purpose of this publication ban is to protect the privacy and dignity of complainants and witnesses in sexual assault cases, particularly those involving intimate partners or former partners. By limiting the dissemination of information related to these proceedings, it aims to prevent the further victimization and trauma of the complainants and witnesses. However, this ban is not absolute. Judges may order that the determination may be published if it is in the interests of justice and the right to privacy of the person to whom the record relates. This means that in certain circumstances, such as cases where there are issues of public interest or importance, the ban may be lifted to allow for the publication of information related to the proceedings. Overall, Section 278.9(1) seeks to strike a balance between the protection of the privacy and dignity of complainants and witnesses in sexual assault cases, and the need for transparency and accountability in the justice system.

COMMENTARY

Section 278.9(1) of the Criminal Code of Canada encompasses the principle of judicial discretion in regards to the disclosure of certain information pertaining to the court process of a sexual assault case. This section prohibits the publication, broadcast or transmission of the contents of an application under section 278.3, evidence taken in a hearing under subsection 278.4(1) or 278.6(2), or the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and reasons provided pursuant to section 278.8. The primary objective of this provision is to ensure the protection of the privacy rights of the sexual assault complainant and the accused persons. The publication of such information can be intrusive and harmful to the parties involved in the proceedings. It could cause further pain and trauma to the complainant, who is already in a vulnerable position due to the nature of the crime committed against them. Additionally, the practical function of this provision is to prevent the public dissemination of sensitive information that has the potential to prejudice, threaten, or unduly influence the judicial procedure. In doing so, the section seeks to safeguard the integrity of the court process and ensure a fair trial. While the prohibition of disclosure is a general rule, the section also acknowledges that there may be circumstances where the interests of justice and the right to privacy of the parties may not be served by this restriction. Therefore, the judge may order the determination to be published if they determine it is in the interests of justice and preserves the privacy of the parties. The rationale behind this allowance is to ensure transparency in the court process, especially where there may be a broader public interest at stake. For instance, in the case where systemic issues or policy concerns are implicated, such as challenges with police investigations or court proceedings, it may be in the public interest to publish the judge's determinations. However, this exception underscores the delicate balance between protecting privacy rights and promoting openness and transparency in the justice system. Ignoring privacy concerns risks further traumatizing the complainant, exposing the accused to stigma and prejudice, and affecting the quality of evidence presented in court. Conversely, over-reliance on privacy concerns could result in public mistrust and criticism of the justice system and the courts' decision-making processes. In conclusion, section 278.9(1) of the Criminal Code of Canada is an essential provision that seeks to protect the privacy of individuals involved in sexual assault proceedings, prevent undue influence or prejudice in the court process, and ensure that the interests of justice are served. Its application must be nuanced and balanced with the need for transparency in the administration of justice, as it establishes the basic parameters of public access to the court process in sexual assault cases.

STRATEGY

Section 278.9(1) of the Criminal Code of Canada outlines strict restrictions on the publication, broadcasting, or transmission of certain information related to sexual assault proceedings. These restrictions are meant to protect the privacy and dignity of victims and ensure that they are not further victimized or stigmatized in the media. As such, when dealing with this section of the Criminal Code, there are several strategic considerations that need to be taken into account. Firstly, it is important to understand the scope of the restrictions outlined in Section 278.9(1). Specifically, the section prohibits the publication of any information related to the contents of an application made under Section 278.3, any evidence taken, information given or submissions made at a hearing under Subsections 278.4(1) or 278.6(2), or the determination of the judge pursuant to Subsections 278.5(1) or 278.7(1) and the reasons provided pursuant to Section 278.8. This means that any information related to these aspects of a sexual assault trial must be kept confidential unless explicitly authorized by the judge. When trying to navigate this section of the Criminal Code, lawyers representing the victim or accused must be careful to avoid any inadvertent breaches of Section 278.9(1). This might involve ensuring that all documents, statements, or evidence presented in court is properly marked as confidential, and that any public statements or media engagement is careful to avoid discussing the prohibited material. Additionally, it may be worthwhile to provide education and training to clients and witnesses about the importance of maintaining confidentiality and avoiding any inadvertent breaches of the Criminal Code. Another strategy that lawyers may employ when dealing with Section 278.9(1) is to request that the judge make an order allowing for the publication of certain information. As noted in the section, a judge may grant permission for the publication of the determination and reasons provided under Section 278.8, but only if they have taken into account the interests of justice and the right to privacy of the person to whom the record relates. If there is a compelling reason for the public disclosure of this information, lawyers may make an application to the judge requesting permission to do so. It is also important to note that Section 278.9(1) does not entirely prohibit the media from reporting on sexual assault cases. However, it does require that the media be careful to avoid any mention of the prohibited material, including the identity of the victim or accused or any information that could be used to identify them. When engaging with the media, lawyers may advise them on these restrictions and provide background information on the case while avoiding any breaches of the Criminal Code. In conclusion, Section 278.9(1) of the Criminal Code of Canada outlines the strict restrictions on the publication, broadcasting, or transmission of certain information related to sexual assault proceedings. When dealing with this section, lawyers representing the victim or accused must be careful to avoid any inadvertent breaches of the section, while also exploring strategies for requesting permission for the publication of certain information or engaging with the media while avoiding breaches. By navigating this section carefully, lawyers can help protect the rights and privacy of their clients and ensure fair and just proceedings.