Secrecy in the courts: Exclusive study reveals increasing use of publication bans in Canada

An investigation of discretionary publication bans requested during the past two years across four provinces shows a 25 per cent increase from one year to the next

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Next spring, a trial is scheduled to start in St. John’s, N.L., for a prominent lawyer charged with four counts of sexual assault of a female, starting when she was 12 years old, and yet the public can’t know who he is because a publication ban protects his identity.

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The order was overturned last month after news organizations appealed, but it remains in place, at least until the lawyer’s team of blue-chip lawyers has a chance to appeal to the Supreme Court of Canada.

It’s a strange situation — one lawyer calls it “bizarre” — but it is only one of many cases raising issues of secrecy in the courts, including some involving Canada’s most notorious murderers.

“The open courts principle is pretty fundamental to our operation as a society. We don’t ever want to have situations where penal proceedings are taking place outside of public scrutiny,” said David Fraser, a lawyer based in Halifax who specializes in privacy and Canadian privacy laws.

Publication bans limit the ability of the media to report stuff, which really means taking away the public’s right to read about it, hear about it, and know about it.

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Cases like the Newfoundland lawyer spark questions — about how often publication bans are used, by whom, in what kinds of cases, what information is trying to be hidden, and are they being used more often.

Previously, there have been few answers.

We don’t ever want to have situations where penal proceedings are taking place outside of public scrutiny

To study and track publication ban use in Canada, National Post sought studies, reports or analysis from justice ministries, court administrations, journal articles and legal academics — but found none.

To fill the void, the Post did an in-depth study of its own.

The Post’s study of all known discretionary publication bans requested during the past two years in courts across four provinces shows a 25 per cent increase from one year to the next.

The jump included 21 per cent more requests in civil court cases and 37 per cent more in criminal court cases.

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This unique study is based on representative provinces — Ontario, Alberta, British Columbia and Nova Scotia — over the two most recent years.

An analysis found 71 per cent of requests asking a judge to prevent people from knowing something that would normally be public information were made in civil cases, such as lawsuits against people or businesses or family disputes.

The remaining 29 per cent of publication ban requests were made in criminal cases, where someone is charged with a crime.

Mark Bantey, a Montreal media law specialist who frequently represents the Montreal Gazette, said an increasing use of publication bans attacks a hallmark of democracy.

“All publication bans are intrusions on freedom of expression. There’s no question about that,” said Bantey. “A pub ban is an infringement of freedom of the press and the open court principle. So, the question becomes, is each publication ban justified?”

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In criminal cases, most of the requested bans were made by the Crown — government lawyers who prosecute cases. Crown attorneys made 75 per cent of the requests to keep information secret, the Post study found.

Just 18 per cent of ban requests in criminal courts were made by the defence, meaning on behalf of a person on trial for a crime. The remaining seven per cent were made by third parties drawn into the cases.

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Among the ban requests made in civil cases, 35 per cent were sought by the plaintiff (the one who initiated the lawsuit) and 21 per cent by the defendant (the one being sued). The most frequent requesters in civil matters, however, were third parties, accounting for 44 per cent of the applications.

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The amount of secrecy across all requests varied greatly.

Some — 11 per cent of all requests in both criminal and civil — wanted a ban on all information presented at a hearing, at least temporarily, and some permanently. This was more common in criminal cases (16 per cent) than in civil (nine per cent.)

By far the most common information sought to be secret in criminal cases was to hide someone’s identity, at 62 per cent of requests. These were often made by the Crown to protect the identity of witnesses called to testify, including police officers and informants.

Of the remaining requests in criminal cases, 22 per cent wanted to ban some specific information other than identity.

By contrast, in civil cases, 23 per cent of requests were for identity bans and 69 per cent were for other information. These included requests to keep corporate or financial information private, for example.

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Doug Richardson, a media law specialist in Toronto who often represents National Post, said too many publication bans threaten the public’s ability to be fully informed of significant community matters. The open courts principle means the public should be an assumed part of court proceedings.

“Some litigants treat it as a private club, a private membership, almost like they’re the only parties there,” Richardson said. “Often we (the media) don’t have the ability or resources to fight against those pub bans.”

While the time period of data collected in this study is short, the steep increase in the number of requests for information to be secret reflects concerns by media lawyers and other observers that transparency of what happens inside Canada’s courtrooms is eroding.

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Secrecy in the courts: Exclusive study reveals increasing use of publication bans in Canada

Wayne MacKay, a professor emeritus at the Schulich School of Law at Dalhousie University, said the cumulative impact of more and more pub bans can damage society.

“If too much of the vital documents that leads to a trial’s conclusion are not available, then that may not be a good way to promote respect for and the credibility of the justice system.

“There may be legitimate cases where third-party interests or compelling vulnerable interests need to be protected, but if it is in large numbers, you start to get concerned about why.”

Bantey’s experience supports the study’s finding of increased use.

“My experience is that the parties in both civil and criminal cases are now more brazen in their requests for publication bans because they are realizing the media no longer has the resources to challenge all of the requests,” said Bantey.

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Just like the Newfoundland lawyer seeking to hide his identity, publication bans usually only come to public attention when they seem outrageous or unbalanced — dramatic cases when pub bans become an important part of a story because a confused public demands answers.

Such as when murderer Luka Magnotta asked a Quebec judge to completely ban reporters from the courtroom at his preliminary hearing in 2013. Or when defence and Crown lawyers both wanted the police interrogation of Toronto’s van attack mass murderer Alek Minassian kept from the public throughout his trial, even if it was shown in open court.

In Nova Scotia, a publication ban was placed on the identity of Rehtaeh Parsons in 2014, making it illegal for her own parents to tell her story or use her name in their campaign against cyberbullying and child sex assault. In B.C., a sadly similar case had a publication ban placed on the name of Amanda Todd at a trial, now underway, of a man accused of cyberbullying her, until it was overturned by a court challenge.

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Both cases forced parents to fight to be able to say their dead child’s name in public.

The inflexibility of publication ban laws protecting the identity of victims of sexual assault — even when a victim wants to share their own story — sparked protests last year when a Waterloo, Ont., woman was fined $2,600 for speaking to family and friends about what happened to her.

Although rarely so directly in the news, publication bans are an always percolating, often frustrating and sometimes controversial part of the judicial system that usually stays behind closed doors.

For years there was little anyone could do about them.

Media would try to oppose some in court but an accused’s right to a fair trial typically won the day for a judge. Often media or the public never even knew a publication ban was requested until after it was imposed.

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Court openness … is essential to the proper functioning of Canadian democracy

That started to change after a landmark Supreme Court of Canada ruling in 1994, called Dagenais v. CBC. It said the right to a fair trial must be balanced with other Charter rights, such as freedom of the press and freedom of expression.

Other important judicial rulings over the years have changed how publication bans are dealt with, including last year, when the estates of murdered billionaire couple Barry and Honey Sherman tried to keep their public estate files private, all the way to the Supreme Court. They eventually lost.

“Court openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of Canadian democracy,” the Supreme Court said in that decision. “Reporting on court proceedings by a free press is often said to be inseparable from the principle of open justice.”

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In response to the various rulings, judges and lawyers have become more sensitive to the importance of open courts and freedom of the press.

Several provinces now send notifications of discretionary publication ban requests to media organizations and other parties, allowing objections to proposed restrictions.

Ontario, B.C., Alberta, and Nova Scotia are four provinces with a standard notification system. Ontario’s, Alberta’s and B.C.’s covers superior court level motions while Nova Scotia’s includes both provincial and superior court applications.

“In the beginning, the service was rarely used because there was no rule or policy requiring notice to be given,” said Jennifer Stairs, director of communications for the Nova Scotia judiciary. As rules and policies evolved, she said, the system became more active and inclusive.

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Quebec does not have as robust a system.

“In Quebec, we don’t have any system for notifying media. It is very informal,” said Bantey. When a pub ban is requested, a judge might ask that the media be notified and suggest a couple of lawyers who frequently represent media organizations to be contacted, he said.

When requests to make something secret are themselves secret, no one can even object or complain. This led to the shocking revelation this past March in Quebec of a so-called “ghost trial” — a secret hearing of a secret defendant for a secret crime, conducted in a secret municipality by a judge, prosecutor and defence lawyer who are also all secret.

Even though more proactive than in Quebec, other provincial alert systems capture only some — a minority — of publication bans that are used each day in Canada.

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Notifications are not given for statutory bans or mandatory bans.

Statutory bans are automatically in place by law and do not need a judge to order them — such as a ban on identifying a child charged under the Youth Criminal Justice Act and a ban on reporting when a confession is entered as evidence at an accused’s preliminary inquiry, until the trial is over.

A second class of publication bans are mandatory. They need to be ordered by a judge at a hearing — but a judge is required to automatically grant them if they are requested. These include bans on identifying a complainant in a sexual assault case, identifying child victims of adult crimes, evidence heard at a bail hearing (if requested by the accused) and evidence heard at pre-trial hearings until after a trial ends.

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That leaves discretionary publication bans — those that may or may not be granted by a judge hearing a case — that can be challenged.

These discretionary bans are the focus of the National Post study.

The 1994 Supreme Court of Canada ruling in Dagenais v. CBC changed how publication bans are viewed by the courts.
The 1994 Supreme Court of Canada ruling in Dagenais v. CBC changed how publication bans are viewed by the courts. Photo by Jason Franson/The Canadian Press/File

The Post turned to the notification systems to track discretionary pub ban requests. All such notices from Ontario, B.C., Alberta, and Nova Scotia sent during 2020 and 2021 were collected and the information in the notices compiled into a database.

An analysis of the 577 cases in which a pub ban request was made provides the statistics for this story. The system does not track the outcome of requests.

Notifying the media is a policy or contained in practice guidelines from the courts and is not a legal requirement, and cases slip past, said Fraser, the privacy lawyer. It requires judges and lawyers to be proactive.

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“When you’re applying for a publication ban you aren’t inclined to then suggest notice should be given,” Fraser said of courtroom tactics.

In fact, data recently released to Postmedia by the B.C. Attorney General’s office, six months after requesting it, shows that many more publication bans were imposed in the province than public notifications sent.

This new B.C. data confirms a strong trend of increased discretionary pub bans in B.C. Supreme Court over the past decade. There were 48 discretionary pub bans placed on witness and victim identities back in 2011/2012 and there were 111 in 2019/2020. (There were 54 in 2020/2021 with the ministry noting court operations were curtailed for portions of the year by COVID. The ministry uses fiscal years rather than calendar years.) There were an additional 38 discretionary identity bans on justice system participants in 2019/2020 and 20 more in 2020/2021.

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Yet only 17 notifications of pub ban requests were sent by the B.C. court in 2020 and 51 in 2021.

Lawyers interviewed about the study’s findings offered explanations for some of the numbers and expressed surprise at others.

The Crown makes most pub ban requests in criminal cases because they are tasked with ensuring a fair trial and encouraging and protecting witnesses and victims, they said.

John Struthers, president of the Criminal Lawyers’ Association, which speaks for criminal defence lawyers, said, contrary to what many think, there are few opportunities to protect defendants with discretionary pub bans.

“We can’t protect our clients. There’s no way that we can get our client’s name redacted from criminal complaints. There’s no process by which to do that. If you’re accused of something, it’s in the paper; if you’re the accuser, it’s not, necessarily,” Struthers said.

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“It’s all about the complainants these days and about confidential informants. It’s not about the defendant. The defendant, for the most part, doesn’t get any protection at all.”

He would like that rebalanced, he said.

The whole system is still lacking transparency

MacKay, the law professor, sat on a task force in Nova Scotia in the wake of the Rehtaeh Parsons case. He suspects the ease of information spreading on the internet may help explain an increase in pub ban requests.

“In an age where so much is public because of social media and technology, having privacy and trying to do what you can to maintain some privacy is something that people increasingly want,” MacKay said.

He is concerned pub bans might be increasingly abused by rich and powerful people to protect their reputation and privacy in ways that most couldn’t afford to pursue.

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That’s a fear that echoes with both the Sherman estates case and the prominent Newfoundland lawyer.

“That’s another reason why we wouldn’t want publication bans to be too widespread. You wouldn’t want the numbers to be overwhelming or you start to lose a public system which is equal for all. At least that’s the hope that it is,” said MacKay.

Richardson, one of the media lawyers, said one of the biggest concerns raised by the study is that institutions aren’t already tracking the use of pub bans. He also said while the notification systems are a big step forward, those making requests should also be required to notify the outcome.

“That would help us all know and better understand the broader trends of what is happening. The whole system is still lacking transparency.”

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Both Richardson and Bantey suggested better education and awareness among judges, particularly in smaller centres, on the need to balance pub ban requests with freedom of the press and court openness — even if the media isn’t present to object.

“The Supreme Court says, once you conclude a pub ban is justified, you, as a judge, have an obligation to narrow the ban as much as possible in scope, in length and duration. But often that part of the question is forgotten,” said Bantey.

Richardson said courts should consider a procedure, in some circumstances, of appointing an independent counsel, what’s known as an “amicus curiae” or friend of the court, to make arguments for openness and freedom of expression to assist in finding the right balance.

“I think a Crown — and a judge — has a duty to ensure that justice is done in accordance with the Charter and according to the openness principle,” said Richardson.

Meanwhile, the Newfoundland lawyer’s strange case could push Canada’s top court to take another deep dive into the appropriate balance of publication bans, the open courts principle and a public’s right to know.

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