Criminal Code

Marginal note:Exclusion of public in certain cases

• 486 (1) Any proceedings against an accused shall be held in open court, but where the presiding judge, provincial court judge or justice, as the case may be, is of the opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice, or that it is necessary to prevent injury to international relations or national defence or national security, to exclude all or any members of the public from the court room for all or part of the proceedings, he or she may so order.

• Marginal note:Protection of witnesses under 18

  (1.1) For the purposes of subsections (1) and (2.3) and for greater certainty, the proper administration of justice includes ensuring that the interests of witnesses under the age of eighteen years are safeguarded in proceedings in which the accused is charged with a sexual offence, an offence against any of sections 271 to 273 and 279.01 to 279.03 or an offence in which violence against the person is alleged to have been used, threatened or attempted.

• Marginal note:Support person

  (1.2) In proceedings referred to in subsection (1.1), the presiding judge, provincial court judge or justice may, on application of the prosecutor or a witness who, at the time of the trial or preliminary hearing, is under the age of fourteen years or who has a mental or physical disability, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while testifying.

• Marginal note:Witness not to be a support person

  (1.3) The presiding judge, provincial court judge or justice shall not permit a witness in the proceedings referred to in subsection (1.1) to be a support person unless the presiding judge, provincial court judge or justice is of the opinion that the proper administration of justice so requires.

• Marginal note:No communication while testifying

  (1.4) The presiding judge, provincial court judge or justice may order that the support person and the witness not communicate with each other during the testimony of the witness.

• Marginal note:Protection of justice system participants

  (1.5) For the purposes of subsection (1) and for greater certainty, the “proper administration of justice” includes ensuring the protection of justice system participants who are involved in the proceedings.

• Marginal note:Reasons to be stated

  (2) Where an accused is charged with an offence mentioned in section 274 and the prosecutor or the accused makes an application for an order under subsection (1), the presiding judge, provincial court judge or justice, as the case may be, shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.

• Marginal note:Testimony outside court room

  (2.1) Despite section 650, if an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 170, 171, 172, 173, 210, 211, 212, 213, 266, 267, 268, 271, 272, 273, 279.01, 279.02 or 279.03 and the complainant or any witness, at the time of the trial or preliminary inquiry, is under the age of eighteen years or is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, the presiding judge or justice, as the case may be, may order that the complainant or witness testify outside the court room or behind a screen or other device that would allow the complainant or witness not to see the accused, if the judge or justice is of the opinion that the exclusion is necessary to obtain a full and candid account of the acts complained of from the complainant or witness.

• Marginal note:Testimony outside court room

  (2.101) Notwithstanding section 650, where an accused is charged with an offence referred to in subsection (2.102), the presiding judge or justice, as the case may be, may order that any witness testify

  • (a) outside the court room, if the judge or justice is of the opinion that the order is necessary to protect the safety of the witness; and

  • (b) outside the court room or behind a screen or other device that would allow the witness not to see the accused, if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness.

• Marginal note:Offences

  (2.102) The offences for the purposes of subsection (2.101) are

  • (a) an offence under section 423.1, 467.11, 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) or 22(1) of the Security of Information Act; and

  • (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

• Marginal note:Same procedure for opinion

  (2.11) Where the judge or justice is of the opinion that it is necessary for the complainant or witness to testify in order to determine whether an order under subsection (2.1) or (2.101) should be made in respect of that complainant or witness, the judge or justice shall order that the complainant or witness testify pursuant to that subsection.

• Marginal note:Condition of exclusion

  (2.2) A complainant or witness shall not testify outside the court room pursuant to subsection (2.1), (2.101) or (2.11) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the complainant or witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.

• Marginal note:Accused not to cross-examine child witness

  (2.3) In proceedings referred to in subsection (1.1), the accused shall not personally cross-examine a witness who at the time of the proceedings is under the age of eighteen years, unless the presiding judge, provincial court judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination and, if the accused is not personally conducting the cross-examination, the presiding judge, provincial court judge or justice shall appoint counsel for the purpose of conducting the cross-examination.

• Marginal note:Order restricting publication

  (3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with

  • (a) any of the following offences:

    • (i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

    • (ii) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

    • (iii) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

• Marginal note:Limitation

  (3.1) An order made under subsection (3) does not apply in respect of the disclosure of information in the course of the administration of justice where it is not the purpose of the disclosure to make the information known in the community.

• Marginal note:Mandatory order on application

  (4) The presiding judge or justice shall

  • (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant to proceedings in respect of an offence mentioned in subsection (3) of the right to make an application for an order under subsection (3); and

  • (b) on application made by the complainant, the prosecutor or any such witness, make an order under that subsection.

• Marginal note:Ban on publication, etc.

  (4.1) A judge or justice may, in any proceedings against an accused other than in respect of an offence set out in subsection (3), make an order directing that the identity of a victim or witness — or, in the case of an offence referred to in subsection (4.11), the identity of a justice system participant who is involved in the proceedings — or any information that could disclose their identity, shall not be published in any document or broadcast in any way, if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

• Marginal note:Offences

  (4.11) The offences for the purposes of subsection (4.1) are

  • (a) an offence under section 423.1 or a criminal organization offence;

  • (b) a terrorism offence;

  • (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; and

  • (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

• Marginal note:Order restricting publication

  (4.2) An order made under subsection (4.1) does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

• Marginal note:Application

  (4.3) An order under subsection (4.1) may be made on the application of the prosecutor, a victim or a witness. The application must be made 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.

• Marginal note:Contents of application

  (4.4) The application must be in writing and set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

• Marginal note:Notice of application

  (4.5) The applicant shall 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:Hearing may be held

  (4.6) The judge or justice may hold a hearing to determine whether an order under subsection (4.1) should be made, and the hearing may be in private.

• Marginal note:Factors to be considered

  (4.7) In determining whether to make an order under subsection (4.1), 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 significant 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

  (4.8) An order made under subsection (4.1) may be subject to any conditions that the judge or justice thinks fit.

• Marginal note:Publication of application prohibited

  (4.9) Unless the presiding judge or justice refuses to make an order under subsection (4.1), no person shall publish in any document or broadcast in any way

  • (a) the contents of an application referred to in subsection (4.3);

  • (b) any evidence taken, information given, or submissions made at a hearing under subsection (4.6); 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:Failure to comply with order

  (5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction.

• (6) [Repealed, R.S., 1985, c. 19 (3rd Supp.), s. 14]