Publication Bans, Sealing Orders and Orders for In-Camera Proceedings

  • February 15, 2003

WHEREAS the Supreme Court of Canada has ruled in Dagenais v. CBC, CBC v. New Brunswick (Attorney General) and R. v. Mentuck on the desirability of providing notice to the media of applications for discretionary publication bans and sealing orders and on the requirement for courts to take into account the fundamental right of freedom of expression as entrenched in section 2(b) of the Charter of Rights and Freedoms whenever a discretionary publication ban is sought in criminal proceedings;

WHEREAS notice to the media of applications for discretionary publication bans, sealing orders and in-camera orders is consistent with the principle of openness in judicial proceedings accepted by the Supreme Court of Canada in Edmonton Journal v. Alberta (Attorney General),

WHEREAS fundamental fairness requires that notice of a court application to infringe a Charter right or freedom be given to those who will be directly affected;

WHEREAS it is desirable to achieve some uniformity of procedure across Canada for providing such notice;

WHEREAS an accessible registry of all publication bans and sealing orders is desirable so that the public and the media know what orders have been made, and on what terms, particularly when the order is granted through the exercise of the court's discretion under its common law jurisdiction;

WHEREAS the Supreme Court of Canada has emphasized that courts must take into account not only the evidence of the party seeking to displace the general rule of openness but also the importance and demands of the right to free expression, even where no one is present to argue the interests of the press and the public to free expression;

WHEREAS a procedure is necessary to ensure there is an opportunity for the court to address the balance between the privacy of the individual and the principle of open courts;

BE IT RESOLVED THAT the Canadian Bar Association urge federal, provincial and territorial authorities, in consultation with various practice areas of the bar, to adopt procedures in accordance with the following principles: 

  1. The media should receive reasonable and timely notice of applications for discretionary publication bans, sealing orders and orders for in-camera proceedings, and be given the opportunity to make representations before they are issued;
  2. In criminal cases, Crown counsel should ensure that a court presented with an application for any such order is advised of applicable law and procedures;
  3. All such orders, both discretionary and mandatory, should be recorded in writing, and be made accessible to the public and to the media in a formal, accessible court registry on a timely basis;
  4. In particular, the terms of discretionary publications bans, sealing orders and in-camera orders should be recorded and made accessible to the media on a timely basis; and
  5. Notice should be posted without delay of a discretionary publication ban or sealing order. 

Certified true copy of a resolution carried as amended by the Council of the Canadian Bar Association at the Mid-Winter Meeting held in Banff, AB February 14-16, 2003.

John D.V. Hoyles

Executive Director/Directeur exécutif