Publication bans are mandatory in Canada in the context of certain criminal trials. Pursuant to s. 486.4(1) of the Criminal Code, R.S.C. 1985, c. C-46, there is a mandatory publication ban on a complainant’s identity in sexual assault trials where requested. However, there is no such mandatory requirement in civil cases where a party requests one, requiring a civil litigant to apply to the court to have one ordered.
Such was the case in Galloway v. A.B., 2019 BCSC 395, where one of the defendants, A.B., sought a publication ban and partial sealing order to protect their identity. This action has had a long history, with a recent pre-trial ruling in 2025 BCSC 1855, where the defendants brought an application for the bifurcation of trial into multiple stages. The action commenced in October 2018 when the plaintiff, previously a creative writing teacher at the University of British Columbia, commenced a defamation lawsuit against numerous parties, including a woman who accused him of sexual assault. The plaintiff had previously admitted to having a relationship with A.B. but denied assaulting her. He alleged in the action that he was defamed by A.B. and the other defendants.
The chambers judge had to determine whether the orders sought by A.B. were necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures would not prevent the risk, and whether the salutary effects of the orders sought outweighed the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the rights of the litigants to a fair and public trial, and the efficacy of the administration of justice.
This action had considerable information published about the underlying events related to the case, with widespread media coverage linked to the plaintiff by name, thought not to A.B., who had been referred to as the “Main Complainant”. The chambers judge noted that the burden on an applicant who seeks to displace the open court principle and obtain a restrictive order is a significant legal and evidentiary burden. The court was satisfied that a publication ban in the case was warranted, noting that the types of risk to the administration of justice that may justify a publication ban may take many forms. This can include a party’s commercial interests or risk to their safety.
The applicant argued that the salutary effects of the orders sought were to protect herself from stigmatization, harassment, invasion of privacy, victimization, psychological hard, and risk of physical harm. In this case there was direct evidence of the harm to the applicant’s health because of the initial publication of her name in the pleadings when the action was filed and her name reported. The court was not convinced that those salutary effects were vitiated by the existence of a previous publications of the applicant’s name. A publication ban need not result in perfect anonymity.
The court went on to hold that, other than the open court principle, the plaintiff did not have any credible deleterious affect on their ability to pursue the claim as a result of the orders sought, and that the vindication through the action was properly accomplished through trial and not through the filing of pleadings or other pre-trial motions.
