Whose privacy?

Criminal law proceedings in Canada are generally open to the public, and information about them is routinely reported in the media. This is a good thing: We want our laws and courts to be transparent and accountable.

However, there are some situations where the privacy of victims of crime needs to be protected. Where the person is, for instance a child or youth, it is often reasonable to keep identifying information about them out of the media. Survivors of sexual offences are others for whom ensuring privacy seems important. Sexual offences continue to attract so much stigma and victim-blaming that it is easy to see why someone might not want to report such a crime out of fear their name and details of what has been done to them might be made public.

And, so, Canada’s Criminal Code, in section 486.4, states that judges may make “an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way.”

The purpose of the ban is to protect the privacy of a victim or witness, but in cases where identifying the accused would also identify the victim (eg. in the case of a sexual assault perpetrated by the victim’s partner or other family member), the accused’s name is included in the information not to be published.

The victim can apply for such an order, as can the Crown Attorney. While not automatic, these publication bans are the rule rather than the exception.

Twisting the law

A recent case in Waterloo Region saw the use of a publication ban twisted in a way that can only be described as an obscene miscarriage of justice.

The survivor of a sexual assault, whose assailant was charged, prosecuted and found guilty in a case with a publication ban, shared the transcript of the proceedings with her family and friends.

She did not post the transcript on Twitter or Facebook; she did not send it to the local newspaper; she did not stick it up on lamp-posts around town. She shared it with people she knew and who knew she had been sexually assaulted.

Very unfortunately for her, the fact that she had done so became known to the man who had sexually assaulted her. He contacted the police, who made the decision to charge her. The Crown Attorney then made the decision to prosecute the charge. The woman entered a guilty plea and now must pay a $2,000 fine and a $600 victim fine surcharge.

Sending the wrong message

This seems like an obvious situation for the police and Crown to have made compassionate use of the discretionary powers they both have over when and when not to lay charges or prosecute them. After all, the complaint about the breach did not come from the victim but from the person who had been found guilty of sexually assaulting her.

Justice Thomas McKay could also have shown compassion when imposing a penalty on the survivor after her guilty plea. Instead, he levied what a friend of mine, a former Crown, said was an extremely high fine, while noting that:

“[C]ourt orders have to be followed, particularly ones that deal with people’s privacy.”

Really? The privacy in question was the survivor’s privacy, and she made the decision to share what had happened in the trial with people who already knew about the sexual assault.

I am not persuaded, as the judge also claimed, that he truly “understand[s] the emotional impact of being a victim of crime.”

A lack of legal advice

As for the survivor: we don’t know what led her to agree to or suggest a guilty plea, but I can think of lots of possible reasons. Because sexual assault survivors do not have lawyers in criminal proceedings, it is likely no one explained exactly what a publication ban meant. She would have been justified in thinking it did not apply to her since it was intended to protect her privacy. She may have thought it did not apply to private communication: after all, she did not “publish” anything. She may have thought that, since the accused was found guilty, it didn’t apply. She may have just wanted the ongoing nightmare of, first, being sexually assaulted, second, testifying in the criminal trial of the assailant and, third, being charged with a criminal offence herself, to be over, and figured a guilty plea would be the best way to make that happen quickly.

Whatever the reasons for any of the decisions made by those involved in this story, it identifies a clear systemic problem. The Ontario Coalition of Rape Crisis Centres makes this point:

“We believe that this incident perpetuates both a lack of justice and a retaliatory approach to sexual violence survivors who use the criminal justice system.”

Fixing a broken system

It’s hardly news that the criminal response to sexual violence is poor and, as a result, reporting rates are very low, hovering somewhere just shy of 10%. Survivors of sexual violence feel isolated and unsupported, and offenders are seldom held accountable for their actions.

While many of the individuals involved in this story could likely have done a better job, it is the system itself that needs to get fixed. Here are a few ideas:

• Ensure that all sexual assault survivors have access to free independent legal advice (ILA) as early in the process as possible. This could build on a pilot project Ontario has been running for several years, expanding it to cover all parts of the province and requiring any of those a survivor encounters (whether the police, victim services, community- or hospital-based sexual assault services, etc.) to make her aware of the service. Publication bans could be one of the topics covered through ILA: what they are, the consequences of breaching one, how to ask the court to lift one.
• Implement a province-wide system of community-based sexual assault legal advocates, similar to Ontario’s Family Court Support Workers, who could provide case-management style support to survivors throughout their legal proceedings
• Ensure that sexual assault training for Crown Attorneys and police includes a component on the need for sensitivity when making decisions about whether to lay or prosecute charges in situations where a survivor breaches a publication ban.

As Sara Casselman, Executive Director of the Sexual Assault Support Program of Waterloo Region, said:

“It seems like a great injustice has been done to a victim. The law was twisted and turned around and ended up harming a survivor.”

Wouldn’t it be great if this story could be the impetus for the criminal process to address some of the entrenched systemic failures with respect to how it handles sexual offences?