Making our own change

In March, I wrote about a Kitchener woman who was found guilty of breaching the publication ban put in place to protect her privacy during the sexual assault trial of her former husband. He was found guilty, but when the woman shared the court transcript by email with some friends and family members, he reported her to the police, and she was charged. She entered a guilty plea, was fined $2,000 plus a $600 victim fine surcharge and handed a criminal record. Fortunately, Robin Parker, a former Crown and now a criminal defence lawyer, has taken on her appeal pro bono. She had this to say after filing the appeal:

“It just boggles my mind that someone in the Crown’s office . . . turned the machinery of the state on a sex-assault victim.”

We can only hope that the Court of Appeal agrees and brings a nuanced and compassionate approach to resolving this case.

Loud and unapologetic

Morrell Andrews, also a survivor of sexual assault, never wanted a publication ban, but one was imposed at the request of the Crown when the trial of her assailant began last fall. In fact, she did not even know there was a publication ban until the case ended with a guilty plea from the accused, Zia Shah, and she tried to have it lifted so she could share her victim impact statement or, as she called it, “love letter” to other survivors.

In a bizarre twist – of which there are many in sexual assault trials – once the Crown filed its application requesting that the ban be lifted, Shah’s defence lawyer indicated he intended to seek standing to oppose the request. Given that publication bans have nothing to do with the privacy of the accused, there is no legal basis for the defence to have anything whatsoever to do with having one lifted.  Fortunately, after some delays, the defence chose not to take a position, and the ban was lifted.

In her powerful victim impact statement, Andrews said, in part:

“I am angry, I am livid, I am hurt and I am fuelled by rage. I have felt so many times in this process that my heart has been ripped out of my body. . . . ”

Taking back power

Advocacy efforts are underway to change the Criminal Code so those whose privacy is intended to be protected by a publication ban cannot be criminally charged for talking about the sexual assault they have survived. A group of advocates, including lawyers, is developing a tip sheet to ensure that survivors have basic information about what publication bans are, the consequences of breaching one and how to get one lifted.

In other timely good news – May is Sexual Assault Awareness Month in Ontario – the provincial government has expanded its pilot project to provide free independent legal advice (ILA) to sexual assault survivors from the three pilot locations of Toronto, Ottawa and Thunder Bay to the entire province.

This program allows a sexual assault survivor to have up to four hours of free advice from one of the lawyers on a panel administered by the Ministry of the Attorney General or, for those living in Toronto, from a lawyer at the Barbra Schlifer Clinic. While ILA is not legal representation, the lawyer can provide the survivor with important information about legal options; explain how the criminal process, including reporting to police, works; discuss the survivor’s rights, and explain publication bans.

Unfortunately, despite the fact that demand is bound to increase, the government is not expanding the number of lawyers on the roster.

Educating judges

In the “good news/bad news” category, earlier this month, Bill C-3, which makes it mandatory for applicants to the federal judiciary to commit to participating in judicial education seminars on sexual assault law and social context, received Royal Assent and came into effect.

There is no shortage of bad sexual assault criminal decisions. Cases are decided wrongly for many reasons; among them a lack of knowledge on the part of the judge, ongoing beliefs in rape myths and stereotypes about who gets raped, and legal errors. On top of this, as too many survivors know, judges can be insensitive and even cruel when commenting about them.

As law professors Elizabeth Sheehy and Elaine Craig recently wrote:

“Persistent gaps in judges’ knowledge about Canada’s sexual assault law have provoked a crisis of public confidence in the criminal justice system’s handling of sexual assault allegations.”

Sheehy and Craig are not happy with what C-3 offers, noting that those seeking to be judges must commit to take training, which is quite different from being required to actually take the training. The content of the training is left somewhat up in the air, as the Bill simply requires that the Canadian Judicial Council “should as it ‘considers appropriate’ teach judges about consent and the conduct of sexual assault proceedings as well as provide education regarding myths and stereotypes associated with complainants.”

The Bill is further problematic in at least two other ways. It applies only to judges seeking appointment, which means those already on the bench can continue to hear sexual assault cases with no requirement that they receive education. Only those seeking a federal judicial appointment are subject to the training requirement. However, most sexual assault criminal cases take place in the provincial court system, and those judges will not be required to commit to sexual assault education.

One step forward, but one backwards at the same time, I think. Bring on that National Action Plan to End Gender-Based Violence, with leadership coming from the likes of Andrews, Sheehy, Craig and countless other survivors and advocates, who know what is needed to bring real meaning to the notion of justice for those who have been subjected to GBV.

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