Section 486.5 — Criminal Code: Order restricting publication — victims and witnesses

Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, 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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. The offences for the purposes of subsection (2) are an offence under section 423.1, 467.11, 467.111, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization; a terrorism offence; an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1), 20.1(1), 20.2(1), 20.3(1), 20.4(1) or 22(1) of the Foreign Interference and Security of Information Act ; or an offence under subsection 21(1) or section 23 of the Foreign Interference and Security of Information Act that is committed in relation to an offence referred to in paragraph (c). An order made under this section does not apply in either of the following circumstances: the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person. An order made under this section does not apply in respect of the disclosure of information by the victim, witness or justice system participant when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim, or witness or justice system participant. An applicant for an order shall apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies. An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice. If the prosecutor makes an application for an order under subsection (1) or (2), the judge or justice shall if the victim, witness or justice system participant is present, inquire of them if they wish to be the subject of the order; if the victim, witness or justice system participant is not present, inquire of the prosecutor if, before the application was made, they determined whether the victim, witness or justice system participant wishes to be the subject of the order;

and in any event, advise the prosecutor of their duty under subsection (8.2). The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private. In determining whether to make an order, the judge or justice shall consider the right to a fair and public hearing; whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed; whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation; society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process; whether effective alternatives are available to protect the identity of the victim, witness or justice system participant; the salutary and deleterious effects of the proposed order; the impact of the proposed order on the freedom of expression of those affected by it; and any other factor that the judge or justice considers relevant. An order may be subject to any conditions that the judge or justice thinks fit. If an order is made, the judge or justice shall, as soon as feasible, inform the victims, witnesses and justice system participants who are the subject of that order of its existence and of their right to apply to revoke or vary it. If the prosecutor makes the application, they shall, as soon as feasible after the judge or justice makes the order, inform the judge or justice that they have informed the victims, witnesses and justice system participants who are the subject of the order of its existence; determined whether they wish to be the subject of the order; and informed them of their right to apply to revoke or vary the order. Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way the contents of an application; any evidence taken, information given or submissions made at a hearing under subsection (6); or any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings.