Imagine this: your life partner and the father of your children subjects you to abuse, including sexual violence. You make the difficult decision to leave him and report his violence to the police, who charge him with sexual assault. You are also involved with family court to resolve parenting, child support and property issues.
As is usual in a criminal case, you don’t have your own lawyer and are not present at the bail hearing for your former partner or at initial proceedings where some of the technical aspects of the case are dealt with. At one of those appearances, the Crown asks the judge to have a publication ban imposed, to protect your privacy during the criminal case. The judge agrees, even though no one has explained what this means to you or asked you if you want one. You may not even be informed that one is in place.
The criminal case proceeds, and at its conclusion your former partner is found guilty of a sexual assault described by the judge as “an extremely serious and violent attack” and is given a custodial sentence. You send the transcript of the judge’s written decision by email to family and friends, one of whom shares it with your ex-partner, who reports to the police that you have breached the publication ban. The police – ridiculous as it sounds – charge you. The Crown – ridiculous as it sounds – decides to prosecute you. You are completely shocked, plead guilty and are given a substantial fine.
True story.
Fixing the law
Bill S-12 introduces amendments to the Criminal Code that are intended to improve the legislation relating to publication bans so they do what they are intended to – protect the privacy of sexual assault survivors — without taking away the voices and autonomy of those who decide to report to the police what has been done to them. The Bill, initiated in the Senate, is currently at the hearing process, having passed second reading. If it passes all three readings in the Senate, it will move to the House of Commons in the fall for debate, hearings and a final vote.
Many survivors and many of us who support them are very happy to see that the government is paying attention to this important issue, but we also have serious concerns about the content of the Bill.
As a brief submitted to the Senate Standing Committee on Legal and Constitutional Affairs by NAWL, LEAF, EVA Canada, CAEFS, LASV, Possibility Seeds, Robin Parker, Megan Stephens and me, states:
“While we support the intention behind Bill S-12 of improving the process that victims/survivors face when they want to have an unwanted publication ban on their identity removed, we believe much work remains to be done for this Bill to truly protect access to justice, safety and autonomy for survivors of sexual violence, who are disproportionately women.”
What needs to change?
The ad hoc group that came together to prepare this brief identified a number of key areas where the Bill could have done a better job. Here are a few of them.
First, we believe it is critical that no victim ever face the possibility of being criminalized for failing to comply with a publication ban intended to protect their own privacy. Since survivors are not usually consulted before a ban is imposed and are not always informed that one is in place, that they have the right to have it revoked or that it limits their right to talk about the case, the law should be clear that, if a survivor shares self-identifying information, she shouldn’t have to worry about being charged.
Second, the law should do everything possible to ensure that survivors are informed; ideally, before the ban is imposed, so they can indicate whether or not they want one but, minimally, immediately once one has been put in place. This can’t be left to chance. It takes a long time for Canadian courts to get from the first appearance – which survivors don’t typically attend – to the trial, where the survivor will likely be present as a witness. If a ban is imposed at the first appearance and no one is required to inform the survivor, she could be violating it for months or more without even knowing it exists.
Third, the process for revoking or varying a publication ban needs to be made simple and clear so it can be easily understood by normal people. If a survivor, at any time during the case or after it is over, wants to have the pub ban lifted, this should be a simple procedural matter. Except in rare circumstances (for example, if there are multiple victims and identifying one could identify the others), there should not have to be a hearing. The accused (or formerly accused) should not have a right to be notified of the survivor’s application to have the ban revoked and should not, under any circumstances, have a right to make submissions about it.
In addition, we want to see a meaningful recognition that making new law is not enough. Law reform must be accompanied by appropriate resourcing to ensure those changes are implemented in the manner intended and that those affected by the changes have access to the supports they need.
Generally, with respect to all gender-based violence legislation and legal processes, systems need to be trauma-informed and survivor-centred. Those who apply and interpret the laws require ongoing education and training, systems must be transparent and accountable, community-based organizations that support survivors need adequate funding and, perhaps most important, in the criminal system survivors must have access to free, independent legal advice throughout the process.
Bill C-12 offers great possibilities for a better way forward if it is adapted to reflect the submissions being made by those with both lived experience and professional expertise.
Stay tuned for ongoing updates as this story continues to unfold.