One of the organizers of the “Freedom Convoy” protest, which took place in downtown Ottawa last month, was recently in court. During his appearance, Pat King seemed to express some frustration with the justice system and his right to privacy.

King faces numerous criminal charges, including mischief, counselling to commit mischief, and counselling to obstruct justice among other allegations. His concern was about people livestreaming his court appearances online.  He requested a publication ban to prevent further details of his proceedings from being published by the media. 

Although the presiding Justice did not issue the ban, King was asked to submit a formal written request if he wishes for the court to consider his request at his next appearance.

But is it possible that a publication ban could actually be ordered in a case like this?

Although they are the exception to the rule, publication bans are not unusual in criminal proceedings. Several types of statutory bans are contemplated under the Criminal Code. Publication bans are most frequently ordered in cases where there is a need to protect the privacy and security of victims and witnesses in certain proceedings. These often include cases where allegations are of a sexual nature or where young people are involved. 

This is not the case for King. However, he is not necessarily out of luck just yet, so let’s break it down.

Broad, discretionary publication bans can be ordered in relation to any justice system participant—including accused persons—so long as particular circumstances are met. 

Statutory bans of this nature can only be imposed where they are necessary to uphold the proper administration of justice. In deciding whether this is the case, judges must consider a number of factors. These include the right to a fair and public hearing, which takes the open court principle into account. 

This principle is a longstanding cornerstone of our justice system. It assumes that public confidence in the integrity of our justice system is bolstered by openness, transparency, and full publicity. It is the same principle that allows members of the public to attend court proceedings, and members of the media to report on them. It is a protected Charter right. It is also the reason why 150-odd people were able to log into King’s courthouse Zoom meeting to observe proceedings—giving rise to his concerns. 

So, theoretically speaking, if someone in King’s position decided to seriously pursue a request for a publication ban, there may be some arguments available.  

For example, an applicant may argue another statutory factor for the judge’s consideration—the need for such a ban in order to protect his security as a justice system participant. Given the high-profile nature of a case like King's and the controversial and polarizing nature of the allegations against him, there may be some air of reality to this claim.

But it will be an uphill battle, to say the least. Especially considering the other statutory factors that such a claim must be weighed against, such as the impact on freedom of expression.  

A common-law publication ban could also be available, but in order to obtain it, the applicant seeking it must meet a specific legal threshold known as the Dagenais-Mentuck test. They must show two things: first, that the ban is necessary to prevent a serious risk to the proper administration of justice and, second, that its salutary effects outweigh any deleterious effects on the rights of the parties and the public. 

In order to be successful, the applicant would have to show that there are no reasonable alternative means—aside from a publication ban—to prevent the anticipated risks. The risk must also be real, substantial and well-grounded in evidence. 

From the applicant’s perspective, therein lies the problem. 

Concerns about court attendees livestreaming broadcasting, rebroadcasting, recording or screenshotting court proceedings are generally mitigated by longstanding legal prohibitions against such behaviour. Engaging in any of those behaviours could constitute a crime. This fact alone can reasonably present itself as an alternative means to a publication ban.

There is also deep irony in an applicant seeking such a ban in an effort to protect their own privacy after staging a widescale protest with the aim to garner attention across the globe and then being charged in relation to it. 

All things considered, it is likely that King will continue to get the attention that he deserves—even in spite of his prisoner dock protests.