Judge Colin Westman, formerly of the Ontario Court of Justice in Kitchener, displays a relevant section of the Criminal Code of Canada while speaking with the Globe and Mail on Dec. 11, 2013 about his criticisms of the victim surcharge system used in Canada. He said he was shocked and disappointed by the recent case that charged the victim for breaking a publication ban.J.P. MOCZULSKI/The Globe and Mail
Advocates for sexual-assault survivors are calling for legal and policy changes after a woman was convicted of breaking the publication ban on her own identity for e-mailing the transcript of a court ruling to her friends and family.
The conviction of the sexual-assault victim – who was fined $2,000, plus $600 as a surcharge for victim services – is believed to be without precedent by lawyers and academics who specialize in sexual-assault law.
The case in Kitchener, Ont., raises questions about the justice system’s treatment of sexual-assault survivors at a time when a bill on mandatory training for judges in sexual-assault law is before Parliament.
Legal observers and women’s advocates say that the prosecution and large fine revictimized the victim.
“Really, it’s allowing the legal system to be used against a survivor,” Sara Casselman, executive director of the Sexual Assault Support Centre of Waterloo Region, said in an interview. “It’s being interpreted as a muzzle for survivors, which was never the intention of the law.”
She said the case points to the need for publicly funded legal support for sexual-assault complainants in the trial process. (Next month, Ontario will begin providing up to four hours of free legal advice to sexual-assault complainants.) She also wants a commitment that it won’t happen again.
Ontario Attorney-General Doug Downey declined through spokesman Jesse Robichaud to provide such a commitment or to comment on the case, other than to say that “decisions made by prosecutors in the proper exercise of their discretion will be supported by the Attorney-General.” Mr. Robichaud said in an e-mail that because “this matter is in the appeal period, it would be inappropriate to comment further.”
The unredacted transcript, which the woman requested from a court office, contained the judge’s reasons for convicting her ex-husband of sexual assault. Those reasons were explained in court, but not published. The transcript reached the victim’s ex-husband, and an Ontario prosecutor, Brian White, was brought in from London to handle the case against the victim, so that the Waterloo Region office that prosecuted the ex-husband would not be in a conflict.
The woman, who was represented by a lawyer, Valeria Ruoso, pleaded guilty and was convicted by Provincial Court Justice Thomas McKay last month. The fine was proposed jointly by the Crown and defence. A reporter from the Waterloo Region Record first reported the story.
The law says a judge may order that “any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.” The Supreme Court of Canada has said it was created to foster reporting, by protecting complainants from trauma and humiliation.
Ontario’s manual for its prosecutors says that every prosecution must be “carried out in a manner consistent with the public interest.” Mr. White, the prosecutor, did not respond to e-mails asking him to explain the public interest in prosecuting the woman.
The case is prompting renewed calls on the federal government to require that all rulings in sexual-assault cases be made publicly accessible in written form.
“Judges in many sexual assault cases issue oral decisions … which are never publicly reported,” Elaine Craig, who teaches law at Dalhousie’s Schulich law school, said in an e-mail. That practice “contributed to the perverse outcome of this prosecution.” She said she has never heard of a prosecution of a sexual-assault complainant for violating a publication ban on her identity.
An earlier iteration of the federal bill now before Parliament on mandatory judicial training in sexual-assault law included a requirement for written decisions. Rachel Rappaport, a spokesman for Justice Minister David Lametti, said such a requirement would impose potential costs and thus intrude on the jurisdiction of the provinces, which administer the justice system.
Constance Backhouse, a University of Ottawa law professor, and that school’s former chair in sexual-assault law, said she has not heard of such a case, either. She said Mr. White, the prosecutor, had the discretion not to charge the woman.
“The wiser course would have been to refrain from charging her with violating the ban,” she said in an e-mail. “The $2,000 sentence seems like another misstep. Under the circumstances, could a suspended or conditional sentence have been used instead?”
Colin Westman, a retired judge who sat on the same court in Kitchener, said in an interview that he was “shocked and disappointed” by the case. While there may have been a “technical” violation of the law, he said, the judge could have questioned the guilty plea, and did not have to impose the requested fine, even though it was agreed on by both the Crown and defence.
“It’s the spirit of the law that you sometimes have to focus on. The spirit was to protect her.”
Sean Fine