section 486.5(2)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows for a judge or justice to order the non-publication of information that could identify a justice system participant involved in proceedings for certain types of offences.

SECTION WORDING

486.5(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

EXPLANATION

Section 486.5(2) of the Criminal Code of Canada is an important provision that allows a justice system participant involved in a criminal proceeding to apply for an order that prevents their identification from being published, broadcast, or transmitted in any way. This order can also be requested by the prosecutor involved in the proceedings. The purpose of this section is to protect the safety, privacy, and reputation of justice system participants who may be at risk of harm due to their involvement in criminal proceedings. This can include victims, witnesses, police officers, judges, and other court officials. The types of offences referred to in subsection 486.2(5) include sexual offences, domestic violence, child pornography, and other serious crimes. These types of offences often involve sensitive and personal information that could be damaging or embarrassing if made public. In order to obtain an order under this section, the judge or justice must be satisfied that it is necessary for the proper administration of justice. This means that the order must be deemed appropriate and reasonable in the particular circumstances of the case. Overall, Section 486.5(2) provides an essential protective measure for justice system participants involved in criminal proceedings, ensuring that they are not placed at undue risk or harm due to the dissemination of their personal information.

COMMENTARY

Section 486.5(2) of the Criminal Code of Canada is an important provision that empowers the court to protect the privacy and safety of justice system participants in criminal proceedings. This provision allows judges and justices to make orders directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way, if the judge or justice is satisfied that the order is necessary for the proper administration of justice. The provision is designed to protect those who participate in the justice system, from being improperly identified, vilified, harassed, or threatened. Justice system participants include victims, witnesses, police officers, and other individuals involved in the investigation or prosecution of criminal offenses. While the justice system depends on the cooperation and involvement of these individuals, they may face serious risks and challenges due to their involvement. They may be vulnerable to retaliation, intimidation, or stigmatization, which can harm their safety, well-being, and willingness to participate in the justice system. The provision is particularly relevant in cases of sexual assault, where victims may face intense scrutiny, victim-blaming, or harassment, which can discourage them from reporting the crime or testifying in court. Furthermore, witnesses and police officers may also be targeted by retaliatory actions, such as threats, vandalism, or physical violence. By protecting the privacy and identity of justice system participants, Section 486.5(2) can reduce these risks and ensure that the justice system operates fairly and effectively. The provision also reflects the principle of open justice, which allows members of the public to observe and understand how the justice system functions. However, this principle must be balanced against the need for privacy and safety of justice system participants. The provision allows the court to restrict the publication or broadcast of information that could endanger the participants, while still maintaining the overall transparency and accountability of the justice system. To ensure that Section 486.5(2) is used appropriately, the court must carefully consider the facts and circumstances of each case, and balance the interests of the justice system participants against the public interest in open justice. The court must also ensure that the order is narrowly tailored to achieve its purpose and does not unduly restrict freedom of expression or the right to a fair trial. In addition, the provision raises important questions about the role and responsibility of the media in reporting on criminal proceedings. While the media has an important role in informing the public about the justice system, it must also respect the privacy and safety of justice system participants. The provision can help to encourage responsible reporting that avoids sensationalism, victim-blaming, or other harmful practices. In conclusion, Section 486.5(2) of the Criminal Code of Canada is a significant provision that recognizes the importance of protecting the privacy and safety of justice system participants in criminal proceedings. It reflects the challenges and risks faced by these individuals and provides a mechanism to ensure that they can participate in the justice system with confidence and security. However, the provision also presents challenges and requires careful consideration and implementation to ensure that it is used properly and in a manner consistent with the principles of open justice and freedom of expression.

STRATEGY

Section 486.5(2) of the Criminal Code of Canada is an important provision that allows justice system participants and prosecutors to seek orders prohibiting the publication of information that could identify justice system participants in criminal proceedings. This provision is critical because it protects the privacy and safety of these participants and prevents potential harm that may arise from their identification in the public domain. In this essay, I will discuss some strategic considerations and strategies that could be employed when dealing with this section of the Criminal Code of Canada. Strategic Considerations: 1. Timing: Timing is a crucial consideration when applying for an order under section 486.5(2). Justice system participants and prosecutors must ensure that they file their application at the right time to achieve the desired outcome. If they file too early, the application may be denied for lack of evidence; if they file too late, the harm may have already been done. Therefore, it is essential to carefully consider when to file the application. 2. Evidence: To obtain an order under section 486.5(2), the applicant must provide sufficient evidence to convince the judge or justice that the order is necessary for the proper administration of justice. The evidence must demonstrate the potential harm that justice system participants may suffer if their identification is published. Therefore, applicants must provide compelling and credible evidence to support their application. 3. Balancing of interests: When applying for an order under section 486.5(2), the interests of justice system participants must be balanced against the public interest in openness and transparency in the administration of justice. An order that prohibits the publication of information that could identify justice system participants will limit the public's ability to access information about criminal proceedings. Therefore, applicants must show that the benefits of the order outweigh the public interest in openness and transparency. Strategies: 1. Preparing in advance: Justice system participants and prosecutors should be proactive in preparing in advance for the potential need to seek an order under section 486.5(2). This includes identifying potential risks to justice system participants and gathering evidence that may be required to support an application. 2. Collaboration: Justice system participants and prosecutors may consider collaborating with the media to address concerns about the publication of information that may identify justice system participants. This may involve requesting voluntary compliance with the order or modifying the information to protect the identity of the participants. 3. Education: Justice system participants and prosecutors may consider educating the public about the importance of protecting the privacy and safety of justice system participants. This may help to reduce the potential harm that may arise from identifying them in the public domain. 4. Monitoring: Justice system participants and prosecutors should monitor the media and public comments related to the criminal proceedings to identify any potential breach of the order. Where necessary, they may take steps to enforce the order to ensure compliance. In conclusion, section 486.5(2) of the Criminal Code of Canada is an essential provision that protects the privacy and safety of justice system participants in criminal proceedings. Strategic considerations and strategies must be employed when dealing with this section to ensure that justice system participants are adequately protected and that the public interest in openness and transparency in the administration of justice is balanced.