Criminal Code of Canada - section 486.4(1) - Order restricting publication- sexual offences

section 486.4(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the power of the presiding judge or justice to make an order banning the publication or transmission of any information that could identify complainants or witnesses in cases of certain offenses.

SECTION WORDING

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 346 or 347, (ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

EXPLANATION

Section 486.4(1) of the Criminal Code of Canada allows for a judge or justice to order the non-publication of any information that could identify a complainant or witness in certain criminal proceedings. Specifically, this applies to a wide range of sexual offences, including rape, indecent assault, sexual intercourse with a minor, and related offences. This order can apply to any document, broadcast, or transmission related to the proceedings. This section of the Criminal Code is intended to protect the privacy and well-being of complainants and witnesses in sensitive and often traumatic cases. Publicity around a sexual offence can have significant negative impacts on the personal and professional lives of a complainant or witness, and may deter individuals from coming forward in future cases. By preventing the publication of identifying information, this section of the Criminal Code helps to ensure that these individuals can participate in the legal process without undue harm or harassment. It is important to note that this order is not automatic, and must be specifically requested by the presiding judge or justice. The order may also be subject to certain restrictions or exceptions, particularly if necessary to preserve the rights of the accused. However, the section reflects Canada's commitment to protecting vulnerable individuals and upholding a fair and just criminal justice system.

COMMENTARY

Section 486.4(1) of the Criminal Code of Canada is a provision designed to protect the confidentiality of complainants and witnesses in certain criminal proceedings. The section allows the presiding judge or justice to make an order prohibiting the publication or transmission of any information that could identify the complainant or witness in proceedings related to specific offences. The offences covered under section 486.4(1) include a range of sexual offences such as rape, indecent assault, sexual intercourse with minors, buggery, and gross indecency. The provision also covers offences related to procuring defilement and permitting defilement. It is worth noting that the section covers both historical and current sexual offences, and it applies retroactively in certain cases. The purpose of section 486.4(1) is to protect individuals who have come forward to report sexual offences from being publicly identified, which could result in further harm and trauma. By allowing the presiding judge or justice to make an order prohibiting the publication of any information that could identify the complainant or witness, the section helps ensure that victims of sexual offences can feel safe and secure in reporting the crime and participating in the legal process. It is also worth noting that section 486.4(1) applies only to document publications, broadcasts, and transmissions in legal proceedings. It does not prevent individuals from discussing the case or identifying the victim or witness outside of the courtroom or in public settings. However, anyone who violates the order and publishes or transmits identifying information of a complainant or witness may be found in contempt of court and face penalties such as fines or imprisonment. While section 486.4(1) is an important provision that helps protect complainants and witnesses in sexual offence cases, there are some criticisms of the section that should be addressed. Some argue that the provision can impede freedom of the press and restrict the public's right to know about certain criminal cases. However, it is essential to remember that the section aims to balance the right to freedom of expression with the right of victims to privacy and protection. In summary, section 486.4(1) plays a critical role in protecting the confidentiality of complainants and witnesses in sexual offence cases. It helps ensure that victims feel safe and secure in reporting the crime and participating in the legal process, and it helps prevent them from experiencing further harm and trauma.

STRATEGY

Section 486.4(1) of the Criminal Code of Canada provides for a publication ban to protect the identity of a complainant or witness in sexual offence cases or cases involving violence. In such cases, the presiding judge or justice has the power to prohibit the publication of information that could identify the complainant or witness in any document, broadcast, or transmission. This provision highlights the importance of protecting the privacy and safety of individuals who come forward to report sexual offences or violence. When dealing with section 486.4(1), there are several strategic considerations that lawyers and litigants should keep in mind. First and foremost, it is important to be aware of the scope of the provision and the types of offences it covers. This includes offences such as sexual assault, sexual interference, child pornography, and indecent acts, among others. Lawyers should ensure that their clients are aware of the potential for a publication ban and the reasons why one may be imposed. One potential strategy for dealing with a publication ban is to apply for one at the outset of the proceedings. This can be done through a motion or application to the presiding judge or justice, providing evidence as to why the ban is necessary. This can include factors such as the complainant's fear for their safety or reputation, the potential for harassment or retaliation, or the potential impact of publicity on the outcome of the trial. By making an early application for a publication ban, lawyers can mitigate the risk of information being published that could identify the complainant or witness. Another strategy for dealing with section 486.4(1) is to carefully control the flow of information within the proceedings. This includes ensuring that information that could identify the complainant or witness is not shared with the media or the public. It also involves being mindful of the language used in court documents and during testimony, avoiding any details that could potentially identify the complainant or witness. Lawyers should also ensure that their clients understand the need to maintain confidentiality and refrain from discussing the case with others outside of court. In cases where a publication ban has been imposed, lawyers must ensure that their clients comply with the terms of the order. Failure to comply with a publication ban can result in serious consequences, including contempt of court charges. Lawyers should be vigilant in monitoring media coverage of the case and take swift action to address any breaches of the publication ban. Overall, section 486.4(1) of the Criminal Code of Canada serves as a critical protection for the privacy and safety of complainants and witnesses in sexual offence and violence cases. Lawyers and litigants must be aware of the provision and employ strategic considerations to ensure that the ban is effective and appropriate. This includes making early applications for publication bans, controlling the flow of information, and ensuring compliance with the terms of the ban.