A publication ban is an order the Court makes that prevents anyone from publishing, broadcasting, or transmitting any information that could identify a victim-complainant or witness who participates in the criminal justice system. The publication ban is intended to allow victims, complainants or witnesses to participate in the justice system without suffering the negative consequences of being publicly identified. This type of publication ban is not meant to protect the identity of the accused or offender.

In 1988, the Supreme Court of Canada held that the purpose of publication bans in sexual offences is to encourage the reporting of these crimes by protecting complainants from the trauma of unwanted and wide-spread publication. These orders are currently made under s.486.4 of the Criminal Code.

We recognize that everyone who has experienced a sexual offence has a choice in how they wish to be referred to in the days, weeks, months, and years after harm has been caused. We also recognize that not everyone lives after experiencing sexual violence. Survivor, victim-complainant, and victim are all interchangeable when referring to those who have had sexual offences committed against them. In the context of law, complainant refers to a person who alleges a crime has been committed against them, and victim is a person who has experienced harm as the result of a crime. Those who choose to refer to themselves as a survivor, have typically identified with an element of healing some of the trauma(s) associated with sexual violence and the aftermath. People have been failed in a multitude of ways by our legal system and we want to make sure we include their voice on this important journey to amend section 486.4 of the Criminal Code. This is why on this website we will be referring to victim-complainants to ensure we include all those who have endured a sexual offence.

The best way to find out what someone wishes to be referred to as is to simply ask them.

Pursuant to s.486.4(1) of the Criminal Code, a judge may order a publication ban in relation to the victim of a sexual offence. Such an order becomes mandatory when it is requested by the victim or by the prosecutor (often referred to as the Crown). This means that in either scenario, the judge has no discretion, and must make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. The ban is effective immediately and lasts indefinitely, even after the victim dies.

It is important to note that the victim must also comply with the order. However, many victims of sexual offences are not consulted by the Crown before a publication is imposed on their identity, nor are they notified afterwards.

The law does not oblige the Court or prosecutor to inform a victim-complaint that a ban has been placed on their identity, resulting in many being unaware a ban is in place or of the legal repercussions and penalties for breaching it. Every person who fails to comply with a s.486.4 publication ban order is guilty of an offence punishable on summary conviction. This means that they can face a fine up to $5,000 and/or a term of imprisonment of up to two years less a day.

When unwanted, these restrictions are paternalistic, prevent a victim-complainant from exercising freedom of expression, and reinforce shame and the notion that anonymity always equals protection.

Unwanted publication bans can also give the impression that abusers are protected, and may actually benefit from the restrictions on the victim-complainants as they prevent open communication about the offence and harm experienced.

Lastly, it is incredibly challenging to lift an unwanted publication ban, and often the victim-complainant is abandoned by the prosecutor (Crown Attorney) who has put it in place once proceedings are over. This forces the victim-complainant to either navigate the legal system alone or to hire a lawyer and incur exorbitant expenses to ask for their right to speak.

We hoped to affect the criminal legal system to:

1. Allow victim-complainants to attribute their own experience of sexual offences without being charged;

2. Grant adult victim-complainants of sexual offences a choice in the application of a 486.4 publication ban;

3. Produce comprehensive, accessible, multi-lingual, and public information about 486.4 publication bans on government websites;

4. Simplify the process to lift a ban at any time before, during, or after court proceedings without the services of a lawyer; and

5. Allow victim-complainants to opt out of a 486.4 ban on the Victim Impact Statement form.

The following is now law as of October 26th, 2023 after Bill S-12 was given Royal Assent:

1. The law now says that if a publication ban has been imposed, the court must, at the first reasonable opportunity, inform the recipient of their right to apply to revoke or vary the order. It is empowering the individual to have a choice in the application of a ban. The courts must take into consideration the victim’s wishes.

2. The law also requires the court to ask a victim or witness if they wish to be the subject of a publication ban, if they are present in court. If they are not present, the court would be required to inquire of the Crown if they sought out the wishes of the victim or witness.

3. The law clarifies obligations that the prosecutor has toward the victim or witness with respect to information on their right to seek, revoke or vary a publication ban. The bill would also make important changes to codify and clarify the process for varying or revoking a publication ban once imposed. This new law has also created a new section of the Criminal Code to clarify and streamline the process of seeking to change or revoke a publication ban. If the person who is the subject of the publication ban wants it to be revoked, the court would be required to do so without holding a hearing.

4. The accused will not have any say in the process of modifying or revoking a publication ban.

5. The changes make clear that prosecution shall not occur in situations where a person breached their own publication ban, unless they compromised the privacy of another person who is also protected by a ban and where a warning would not be appropriate.

We would like to thank you all for your support over the past year. While the changes that were put into law aren’t the specific ones we were advocating for, they’re an incredible step in the right direction, and we’re proud of everything that we’ve been able to accomplish.

Now, after this victory, the team at My Voice, My Choice is hanging up our collective hat. Each and every one of us had our own sagas within the legal system that led us to building this collective in January of 2023, and we are all looking forward to creating new kinds victories within our own personal lives.

So this is the last update we will be giving on our webpage, even though we will forever be advocates for freedom of speech, and for the rights of victim-complainants.

But, if this is a cause that inspires you, we encourage you to take action. Making the world a more fair and just place begins with all of us, and all it takes is ordinary people who have the capacity to believe in something better. And we believe in you.