Ontario’s Attorney-General has chosen not to contest the appeal of the first sexual-assault victim in Canada to be convicted of violating a publication ban on her own identity.
A lawyer for the Attorney-General did not apologize or express regret in Ontario Superior Court on Thursday for the prosecution of the victim, who had been sexually assaulted by her ex-husband. Lawyer Julia Forward instead cited a technical reason for dropping the case – the charge had been laid under the wrong section of the Criminal Code.
The case put a spotlight on the justice system’s treatment of sexual-assault complainants and victims, and led to calls for legislative changes from the federal and provincial governments, and improved training of police, lawyers and judges in sexual-assault law and the struggles of survivors.
It was the victim’s ex-husband, who had been sentenced to a year in jail, who brought the case to the attention of police. The judge’s ruling in his case was not published, and the woman asked court services for a copy. She then shared the unredacted copy it provided with friends and family, and the ex-husband learned of what she had done.
Publication bans are routinely applied to the names of complainants in sexual-assault cases under a decades-old federal law aimed at encouraging victims to come forward. In this case, the ban covered the offender’s name to protect the victim’s identity.
“The law was twisted and turned around and actually used as a weapon and a way to continue to exert power and control over a survivor of sexual assault,” Sara Casselman, executive director of the Sexual Assault Support Centre of Waterloo Region, said in an interview.
She said that the prosecution risked a chilling effect on other sexual-assault survivors, who “felt like they would be treated the same way if they approached the criminal-justice system.”
Robin Parker, an appeal lawyer for the victim, said the federal government should amend the Criminal Code to require that the complainant be consulted on a publication ban, preferably by the judge. She also urged changes that would set out a free, straightforward procedure for lifting publication bans, and greater clarity in the law to reflect that a publication ban is meant to protect the complainant, not the offender.
“People who have experienced sexual violence should be free to choose to keep their identity private, or to speak openly about what happened to them,” she said in an e-mail after the court hearing. “Right now the system is paternalistic and confusing.”
The Ontario Crown’s decision means the victim, a mother of two in her 40s, will not have a criminal record and will be refunded the $2,600 fine she paid (including a $600 surcharge for victim services), after being convicted on March 17.
Ms. Forward told Superior Court Justice Paul Sweeny on Thursday morning that the charge against the Kitchener woman had been laid under the wrong section of the Criminal Code and that the case could not be reprosecuted because the time limit on laying the proper charge had lapsed.
The charge was laid under Section 127 of the Criminal Code, which makes it a crime to disobey a judge’s order. But the section is not supposed to be used where “a punishment or other mode of proceeding is expressly provided by law.” In this case, Section 486.6 of the Criminal Code sets out the offence of breaching a publication ban.
Ms. Parker, an appeal lawyer for the victim, along with Karen Symes, thanked Ms. Forward for “recognizing that an injustice was done” and thanked her and the court for acting expeditiously to rectify that injustice.
She told the court that no crime was committed and that the case should never have gotten as far as it did.
“The law is clear that it is not a breach of a publication ban to e-mail a decision to a small group,” she said. She wondered “how this case got this far without someone asking, ‘Is this in the public interest?’ "
Justice Sweeny made no comment on the prosecution of the victim.
While it is possible for victims to ask a judge to lift a publication ban, in this case the victim did not want the ban lifted. Ms. Parker said the victim was not in court when the ban was imposed, and her consent for the ban was not requested. Nor was the ban ever explained to or discussed with her, she told the court.
The Ministry of the Attorney-General, which oversees prosecutions, brought in a Crown attorney from London, Brian White, so the local Crown office in Kitchener, which prosecuted the sexual assault, would not be in a conflict of interest.
The appeal was unusual in that the woman had pleaded guilty to violating the publication ban and, after a joint submission on sentencing by Mr. White and defence counsel Valeria Ruoso, accepted the fine. A transcript shows that Ontario Provincial Court Justice Thomas McKay chided her: “I know that a crime such as this, it is particularly personal and people have a reaction to that. That being said, court orders have to be followed, particularly ones that deal with people’s privacy.”
When Ms. Parker read of the conviction, she contacted the woman and filed an appeal on her behalf.
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