Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Non-disclosure of witness’ identity

• 486.31 (1) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, make an order directing that any information that could identify the witness not be disclosed in the course of the proceedings if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

• Marginal note:Hearing may be held

  (2) The judge or justice may hold a hearing to determine whether the order should be made, and the hearing may be in private.

• Marginal note:Factors to be considered

  (3) In determining whether to make the order, the judge or justice shall consider

  • (a) the right to a fair and public hearing;

  • (b) the nature of the offence;

  • (c) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

  • (d) whether the order is needed to protect the security of anyone known to the witness;

  • (e) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;

  • (e.1) whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities relating to national security or intelligence;

  • (f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;

  • (g) the importance of the witness’ testimony to the case;

  • (h) whether effective alternatives to the making of the proposed order are available in the circumstances;

  • (i) the salutary and deleterious effects of the proposed order; and

  • (j) any other factor that the judge or justice considers relevant.

• Marginal note:No adverse inference

  (4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

Marginal note:Order restricting publication  — sexual offences

• 486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

  • (a) any of the following offences:

    • (i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

    • (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

  • (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

• Marginal note:Mandatory order on application

  (2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

  • (a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

  • (b) on application made by the victim, the prosecutor or any such witness, make the order; and

  • (c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

• Marginal note:Victim under 18  —  other offences

  (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may 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.

• Marginal note:Mandatory order on application

  (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

  • (a) as soon as feasible, inform the victim of their right to make an application for the order;

  • (b) on application of the victim or the prosecutor, make the order; and

  • (c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

• Marginal note:Child pornography

  (3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

• Marginal note:Inquiry by court

  (3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

  • (a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

  • (b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

  • (c) in any event, advise the prosecutor of their duty under subsection (3.2).

• Marginal note:Duty to inform

  (3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

  • (a) informed the witnesses and the victim who are the subject of the order of its existence;

  • (b) determined whether they wish to be the subject of the order; and

  • (c) informed them of their right to apply to revoke or vary the order.

• Marginal note:Limitation

  (4) An order made under this section does not apply in either of the following circumstances:

  • (a) 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

  • (b) 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.

• Marginal note:Limitation — victim or witness

  (5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness 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.

Marginal note:Order restricting publication — victims and witnesses

• 486.5 (1) 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.

• Marginal note:Justice system participants

  (2) 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.

• Marginal note:Offences

  (2.1) The offences for the purposes of subsection (2) are

  • (a) 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;

  • (b) a terrorism offence;

  • (c) 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

  • (d) 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).

• Marginal note:Limitation

  (3) An order made under this section does not apply in either of the following circumstances:

  • (a) 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

  • (b) 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.

• Marginal note:Limitation — victim, etc.

  (3.1) 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.

• Marginal note:Application and notice

  (4) An applicant for an order shall

  • (a) 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

  • (b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

• Marginal note:Grounds

  (5) 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.

• Marginal note:Duties — judge or justice

  (5.1) If the prosecutor makes an application for an order under subsection (1) or (2), the judge or justice shall

  • (a) if the victim, witness or justice system participant is present, inquire of them if they wish to be the subject of the order;

  • (b) 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

  • (c) in any event, advise the prosecutor of their duty under subsection (8.2).

• Marginal note:Hearing may be held

  (6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

• Marginal note:Factors to be considered

  (7) In determining whether to make an order, the judge or justice shall consider

  • (a) the right to a fair and public hearing;

  • (b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

  • (c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

  • (d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

  • (e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

  • (f) the salutary and deleterious effects of the proposed order;

  • (g) the impact of the proposed order on the freedom of expression of those affected by it; and

  • (h) any other factor that the judge or justice considers relevant.

• Marginal note:Conditions

  (8) An order may be subject to any conditions that the judge or justice thinks fit.

• Marginal note:Supplementary duty — judge or justice

  (8.1) 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.

• Marginal note:Duty to inform

  (8.2) 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

  • (a) informed the victims, witnesses and justice system participants who are the subject of the order of its existence;

  • (b) determined whether they wish to be the subject of the order; and

  • (c) informed them of their right to apply to revoke or vary the order.

• Marginal note:Publication prohibited

  (9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

  • (a) the contents of an application;

  • (b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

  • (c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings.

Marginal note:Application — vary or revoke

• 486.51 (1) If a person who is the subject of an order made under section 486.4 or 486.5 requests that the prosecutor have it varied or revoked, the prosecutor shall, as soon as feasible, make an application to vary or revoke the order on their behalf.

• Marginal note:Order — vary or revoke

  (2) If an application to vary or revoke an order made under section 486.4 or 486.5 is made by the person who is the subject of the order or by any other person, including a prosecutor, who is acting on their behalf, the court that made the order or, if that court is for any reason unable to act, another court of equivalent jurisdiction in the same province shall, without holding a hearing, vary or revoke the order, unless the court is of the opinion that to do so may affect the privacy interests of any person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person.

• Marginal note:Hearing

  (3) If the court is of the opinion that varying or revoking the order that is the subject of an application referred to in subsection (2) may affect the privacy interests of any person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person, the court shall hold a hearing to determine whether the order should be varied or revoked.

• Marginal note:Factor

  (4) In order to determine whether the order should be varied, the court shall take into account whether it is possible to do so in a manner that protects the privacy interests of any other person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person.

• Marginal note:Notice

  (5) The applicant is not required to provide notice of the application to vary or revoke the order to the accused.

• Marginal note:Submissions

  (6) The accused shall not be permitted to make submissions in relation to the application.

• Marginal note:Notice of change

  (7) If the order is varied or revoked, the prosecutor shall notify the accused.