Publication bans need not feel like a law school exam

Figuring out publication bans shouldn’t make a judge draw a comparison to a law school exam.

Yet that’s how Justice Christian Lyons described the “unique case” of a man charged with sexual assault who managed to get a court order preventing him from being identified — even though he shouldn’t have gotten that “discretionary” ban.

The case might make Nunavummiut wonder if there’s a weakness in the understanding of publication bans within the criminal justice system.

Lyons on Tuesday revoked a “discretionary” publication ban a justice of the peace had imposed that prevented the publication of the identity of a man who faces sexual assault charges.

Some of the allegations stem from his youth — before he was 18 — while others were adult charges.

The man’s lawyer asked Justice of the Peace Amanda Soper on April 15 to extend the protection afforded under the Youth Criminal Justice Act to cover the adult charges as well. She agreed.

Lyons concluded that discretionary ban — only granted by judges, according to Nunavut court policy — was outside a justice of the peace’s jurisdiction.

Because the case is indeed so unique, the media had been reporting on the publication ban proceedings, including that the accused man faces youth and adult charges. With that coverage in mind and anticipating media would report the decision, Lyons had to figure out how to lift the ban on the adult charges without jeopardizing the man’s right to not be identified on his youth charges.

Canada’s justice system operates on the openness principle. What happens in court must be open to the public — including the media — unless there are exceptional reasons why it shouldn’t be.

There are exceptions to this.

The Youth Criminal Justice Act prevents anyone from identifying an accused person under the age of 18. Mistakes people make in their youth shouldn’t haunt them forever.

Section 486 of the Criminal Code allows a judge to ban the publication of the identities of victims or witnesses. It’s commonly used in sexual assault cases because victims might not come forward to report allegations if they knew their names were going to be published.

Another section of the Criminal Code — Section 517 — bans the reporting of evidence at a bail hearing or a preliminary hearing. When the Crown is convincing a judge to deny bail to someone or that there’s enough evidence to warrant a trial, it’s necessary to say unflattering things about the accused.

Reporting that evidence — before the charge goes to trial — could make it hard to find impartial jurors. It’s also not fair to the accused to air the details of their alleged wrongdoing before a judge has even decided if the matter should go to trial.

Nunatsiaq News journalists have encountered other cases in recent years where members of the public haven’t understood the limitations of publication bans. Under the impression that a publication ban meant there would be no coverage of a court case at all, they have been upset to see stories published.

Because of the openness principle, there is almost never a blanket ban on reporting what happens in a courtroom.

When officials in the justice system don’t understand the limitations of bans, it’s easy to imagine that members of the public, who are unfamiliar with the legal system, might not understand them either.

It’s vital that the openness principle be upheld and that routine matters like publication bans be applied correctly.