Sifting through British Columbia’s online court registry for the name of the man who’d sexually assaulted her, Kelly Favro kept coming up empty.
Kenneth Charles Erickson had been charged, convicted and sentenced – yet his name yielded zero results, more than five years after the 2015 assault.
Ms. Favro would eventually learn the omission was intentional: Without her knowledge, her own name had been concealed behind a publication ban, which shields the identities of sexual-abuse victims from public scrutiny.
But Ms. Favro never sought anonymity, not during her trial or after it. Nobody ever asked her whether she wanted her name shrouded by a publication ban. What disturbed her especially was that it hid her attacker’s name, too.
“I had to get this stupid ban off my name to make his name public and to freely share what happened to me,” said Ms. Favro, a 39-year-old administrative co-ordinator in Victoria.
She is one of many sexual-assault complainants in Canada unaware that their identities – and their stories – are cloaked behind publication bans. Though the court orders were originally meant to protect victims of sexual offences from being identified by the press, today, in a digital age, the bans can also restrict survivors from sharing their own experiences publicly on social media, or privately through e-mails or text messages. Victims who break their bans risk stiff penalties: up to two years in jail, plus potential fines of up to $5,000 under a summary conviction offence.
Though publication bans have become all but automatic in sexual-assault cases across Canada – Crown attorneys often request them at the start of criminal court cases – many complainants have no idea the orders exist. Though the bans are meant to safeguard victims and their privacy, this “protection” can have unintended consequences.
To Ms. Favro, the ban meant that other women couldn’t read about her case and be warned about the man.
Lifting the order became a labyrinthian process that ate up six months of her life. Most galling to her was that Mr. Erickson got a chance, in court, to ask that the order silencing her remain: He didn’t want the case to “attract any more attention,” the judge recalled in his ruling. Ultimately, the judge decided the harassment the offender “endured” since his sexual-assault conviction did not outweigh his victim’s right to tell her story publicly.
“It’s so insulting,” said Ms. Favro, who eventually got her ban lifted in January, 2021. “Not only do we have to deal with a very patriarchal system, but to ask a person who was convicted of hurting us for permission to say our name, and associate ourselves with a story? What year is it, man? Why is this still happening?”
Going public led Ms. Favro to an online community of women across Canada also fighting their publication bans, navigating costly and complex court hearings just to speak openly. The group of survivors spent years rallying lawmakers to change the way publication bans are used. Alongside victims’ advocates and legal experts, they helmed a petition on the issue and presented detailed recommendations last winter to a House committee focused on making the criminal justice system more responsive to victims’ needs.
In late April, the Department of Justice introduced new legislation that begins to rethink how such orders are imposed on victims of sexual offences. The bill proposes that Crown attorneys must ask victims whether they want a publication ban before ordering one. Victims who decide to change or revoke their bans must be given a hearing to do so. Introduced in the Senate, the bill needs to be debated and passed before taking effect.
“For the first time, there’s a recognition for judges that the wishes of the victim matter,” said Morrell Andrews, a Vancouver federal civil servant who has led the charge to change the laws around publication bans in this country, following her own experience as a sexual-assault complainant.
The groundswell of support to reform these orders follows a wider movement to change how courts treat survivors of sexual assault. For years, advocates have argued that the legal system fails victims of sexual violence. Just 6.5 per cent of sexual assaults reported to police resulted in a perpetrator sentenced with jail time, according to Statistics Canada.
Amid the global #MeToo movement, legions of sexual-abuse survivors felt emboldened to come forward. Today, more victims are questioning whether publication bans protect women, or mute them.
“We have come a long way in the last 40 years in understanding more about what survivors need,” said Pam Hrick, executive director and general counsel at Women’s Legal Education and Action Fund. “It says something about a cultural shift and an empowerment that some survivors feel about being able to speak openly, feeling that it’s important for themselves and for others to hear about their experiences.”
At their outset, publication bans were well-meaning, legal experts and advocates agree. The orders, introduced in the seventies and now mandated under Section 486.4 of the Criminal Code, were meant to encourage victims to come forward without fear their names would land on TV or in a newspaper.
Originally, the penalties for breaching these bans were primarily intended for the media – the only parties “publishing” in those times. As technology evolved, so did the concept of publication. Today, that can include anything from e-mails and texts to social-media posts and podcasts – meaning victims can be punished for sharing their own stories. Even e-mailing therapists material about their court cases could constitute a breach of a ban, said Megan Stephens, a criminal and constitutional lawyer who has represented women in their efforts to remove these orders.
In 2021, a court convicted a Kitchener, Ont., sex-assault victim of violating her own publication ban. After her ex-husband was found guilty of sexually assaulting her, the woman e-mailed a court ruling transcript to family and friends. That communication was prohibited under her ban, and got back to her ex. She was fined $2,000, plus a $600 surcharge for victim services.
Advocates argued that by convicting and fining her, the judge was missing the spirit of the law: The point of publication bans was to protect victims, not offenders. Her conviction was later overturned on appeal.
“Like so many things, it starts out as a good idea or an idea that’s intended to address a legitimate problem,” said lawyer Pamela Cross, who, with Ms. Stephens, authored a guide on publication bans for the Consent Comes First campaign at Toronto Metropolitan University. “But … they got a little out of control, and I think they became so pro forma that victims weren’t even – in many cases, as we’re now finding out – aware of the fact that they existed.”
While publication bans remain valuable and necessary for many victims, their blanket usage feels paternalistic now, advocates say. Today, more women want to speak openly to help others and reclaim agency where it was taken away – whether through the crimes themselves, or subsequent dealings with the court system.
It took seven years and the alarming case of Larry Nassar, a USA Gymnastics team doctor who sexually assaulted hundreds of athletes, to move Ms. Andrews to come forward.
She alleged her driving instructor sexually assaulted her when she was 18, in 2013. The man pleaded down to a lower charge of assault and got a conditional discharge with two years’ probation.
In her victim impact statement, Ms. Andrews, now 28, criticized the court, saying it failed to provide meaningful remedy. She planned to share her words publicly, hoping to motivate survivors, but was warned she could not: Her name was under a publication ban.
To her, the order amounted to a silencing. Nobody seemed willing to explain the ban or help remove it. At one point, a judge asked the offender’s defence team to weigh in, which Ms. Andrews found humiliating. After heavy legal legwork, she lifted her ban in May, 2021.
Ms. Andrews believes the current law falsely assumes that all victims want to remain anonymous – and that anonymity equals protection.
“That’s a myth,” she said. “Many women will explain how their publication bans not only silenced them but protected their offenders.”
A publication ban kept Samantha Geiger silenced for more than two years after a man was charged with sexually assaulting her in the spring of 2020.
She learned of her publication ban just before Benjamin Kenmare’s August, 2021, trial. When she asked that it be removed, the Crown put off her request until after the trial, she said. By that point, she felt dismissed entirely.
In the meantime, the publication ban kept her case out of the news – which some acquaintances took to mean the assault wasn’t real. As rumours filled the void, Ms. Geiger said she experienced harassment, online and in person.
After Mr. Kenmare was convicted and sentenced to six months in jail, she couldn’t celebrate. She couldn’t post the news to Facebook, where she keeps in touch with friends and family. She’d hear about relatives reaching out to others, wondering about her sad, cryptic posts.
“And they couldn’t say anything either,” Ms. Geiger, 32, recalled. “Because I could get a $5,000 fine and up to two years in jail if I talked about it, which is more than my rapist got.”
By the time she succeeded in lifting her ban last fall, her attacker was out of custody. Today, the trauma still feels fresh.
“It’s been freeing being able to talk about it but I still feel that heart-clenching anxiety: Am I going to get in trouble for speaking?”
Carrie Low planned to narrate her experiences through a podcast, until she learned Crown attorneys working on her case sought and secured a publication ban on her name, without her knowledge.
“They warned me that if I talked about my story, I could be liable for a charge,” said Ms. Low, who alleges she was drugged, kidnapped and sexually assaulted in May, 2018.
One of the two men accused was acquitted last month; the other was murdered in 2021 before he faced a trial. Ms. Low, 46, sued Halifax Regional Police and RCMP for mishandling evidence in her case.
“I’ve been always public with my name and my story. Why does somebody else get to choose what is right or wrong for me?” said Ms. Low, a gender-based violence consultant in Halifax.
After she successfully removed her ban in October, 2021, Ms. Low felt she regained some sense of control.
“Consent has been taken from me in so many avenues, not only with this sexual assault but through the legal system,” she said. “It’s forced shame on us, that we should not and cannot talk about what happened to us. There’s no healing in that.”
“Straitjacket” is how Jade Neilson describes her own publication ban, secured by Crown attorneys despite her repeated protests, and only lifted last year.
Between the time she was 12 and 15, Ms. Neilson said she was groomed and sexually abused by a young man working in a youth program. When she learned the man was still working close to children more than a decade later, she reported him to police, with charges laid in May, 2021. Though the case ended with a restraining order against the man, it would take more than a year after charges were laid for the court to rescind her publication ban.
“I was up against this machine,” said Ms. Neilson, a 28-year-old health care administrator in Vancouver. “Most victims are up against a system that’s pushing them back down.”
She’s frustrated for survivors who are unable to navigate the legal thicket involved in reversing their publication bans. Given the orders predominantly apply to child victims and complainants in sexual-offence cases, Ms. Neilson believes the legal system is set up with uneven rules.
“Sexual offences, by and large, affect women and children,” she said. “We’ve created a law that’s disproportionately affecting women’s right and ability to speak for themselves.”
Advocates are calling on the government to be as ambitious as possible with the new legislation.
They’re pushing for clearer, easier-to-access information for victims on everything these bans entail, including how to opt out. They want judges to stop asking those accused of crimes to weigh in on victims’ ability to speak publicly. Most crucially, they’re urging lawmakers to do away with penalties for victims who speak out.
“Nowhere in this bill do they make it clear that complainants could not be criminalized themselves for sharing information,” Ms. Stephens said.
Like other critics, she is worried the bill’s current design risks complicating a knotty process even further. She feels the newly proposed hearings for victims who hope to remove their bans will be costly and time-consuming. She noted that when prosecutors seek a publication ban, all they have to do is stand up in court and request it.
“And it should basically be as simple to get one lifted,” Ms. Stephens argued.
The goal, advocates say, is to acknowledge that sexual-abuse complainants have different needs and give them more autonomy throughout the court process.
While some victims want to go public, others want to retain their publication bans, fearing for their privacy and safety.
When staff at Toronto’s South Asian Women’s Centre interviewed 50 women about their lives throughout the pandemic – including experiences of sexual, physical, emotional and financial abuse – many stressed they didn’t want the conversation to leave the room, fearing ostracism from their families and communities.
“It’s a difficult journey for them to come forward to even talk about it because of the issues of shame, of fear, of uncertainty,” said Kripa Sekhar, executive director at the centre.
“It takes a long time for that disclosure of abuse to happen. It takes a much longer time for them to even report it. To go public is a very different level,” Ms. Sekhar said.
Some experts believe publication bans should continue being added, by default, at the very beginning of cases to safeguard survivors who need anonymity. Publication bans can serve as “one layer of support and protection for racialized women in a system that does nothing to actually support them or protect them – and in fact goes out of its way to blame them,” said Anuradha Dugal, vice-president of community initiatives at the Canadian Women’s Foundation.
Ms. Dugal added, “Being public about your story, can be – not always, but can be – a marker of a certain kind of race privilege or class privilege that you might have.”
Questions remain about how the newly proposed changes will play out among time-strapped Crowns struggling with high caseloads: How will they find time to consult with clients on publication bans – especially victims living precariously?
“Think about a woman who doesn’t have a permanent address, or who is trying to navigate her safety by not staying in one place. If the Crown is demonstrating that they tried to reach her by sending three e-mails or letters, that’s not really trying,” said Deepa Mattoo, executive director of the Barbra Schlifer Commemorative Clinic, which works with marginalized women facing violence.
Robin Parker, a Toronto lawyer and former federal Crown attorney, said one challenge is that publication bans are typically imposed during an accused’s first court appearance, where complainants – considered witnesses – are often absent.
Though she believes efforts should be made to consult complainants ahead of their trials, Ms. Parker said Crowns are “overworked, overwhelmed, and under resourced.” Moreover, Crowns are there to represent the state – not complainants.
“The Crown is not in a position to be giving advice of any type – and in particular, legal advice – to complainants,” Ms. Parker said.
It’s a gap she’s been trying to fill, helping nearly a dozen Ontario complainants, pro bono, lift their publication bans.
“But … why am I acting as a volunteer to deal with this lack of resources and funding for gender-based violence?” said Ms. Parker, adding that a better solution would be funded duty counsel for complainants, even through virtual Legal Aid clinics.
Ms. Andrews pointed to Australia as a model for meaningful change on the issue. Following the Let Us Speak campaign, victims in several jurisdictions can now self-identify in media if they are over 18, have the capacity to consent, do so in writing and do not identify another survivor.
In Canada, experts are also urging training for lawyers and prospective judges on how to handle publication bans consistently in courtrooms across the country.
Brandy Mullen believes the silence imposed on victims of sexual offences ultimately deepens the denial around these crimes.
Prof. Mullen, who teaches health sciences at Georgian College in Barrie, Ont., said she was sexually abused between the time she was five and nine years old, a violation that would taint her adult life.
When Prof. Mullen reported to police decades later, a publication ban was placed on her case. Trying to lift the order, she was left weaving between numerous lawyers, courts and another judge seeking input from the accused’s defence team on whether she could speak publicly.
“That question shows how dysfunctional our criminal justice system is, how harmful it is for victims,” said Prof. Mullen, 43.
Last year, the accused was acquitted – a verdict Prof. Mullen expected, placing little faith in the courts. After lifting her publication ban, she made a point of speaking stridently about her case.
To her mind, silence favours abusers, not victims.
“Many people don’t want to believe it’s in their family or community – they want to turn that blind eye,” she said. “It’s very uncomfortable for people, and people don’t like to be uncomfortable.”
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