Recently, a sexual assault survivor was charged with, and pleaded guilty to, breaking a publication ban protecting her own identity. The ban had been ordered in a criminal proceeding against the survivor’s ex-husband, who was convicted of sexually assaulting her. Such a ban, ordered based on section 486.4 of the Criminal Code, prohibits the sharing of any information that could identify a complainant in a criminal proceeding.
Following the conviction of her ex-husband, the survivor shared a transcript of the judge’s reasons for conviction with friends and family, which was then reportedly passed on to a friend of the guilty party. When the ex-husband learned about this, he contacted the police, and the survivor was charged criminally for breaking the ban. She pleaded guilty, and was fined $2000 and ordered to pay a $600 victim surcharge fee.
After outrage from women’s advocates over this unjust result and national media coverage, the survivor obtained a new lawyer and appealed the conviction. The Crown conceded the appeal, based on an apparent legal technicality (the guilty plea was entered under the wrong section of the Criminal Code), and the survivor’s conviction was overturned. While this case eventually saw justice done, the revictimization of the complainant by the guilty ex-husband, by the Crown, and arguably also by the court that convicted her cannot be undone.
There is much reform needed when it comes to criminal publication bans. These bans are routinely requested by Crown attorneys and ordered by courts in cases involving sexual violence, often without any input from or explanation to survivors. While intended to protect their identity and promote reporting, these bans can be paternalistic and result in the unintended silencing of survivors. It is imperative that complainants are afforded some choice when it comes to sharing their identity, that their input on this be sought both at the outset and conclusion of a criminal proceeding (because they may change their mind), and that they have access to a straightforward and cost-free process to have a ban lifted should they request it.
It needs to be borne in mind here: a criminal case involves the state (Crown) against a person accused of a crime. The complainant (alleged victim of the crime or survivor) is not a party to the criminal proceeding. They are mere witnesses with no control over that proceeding. They give up their privacy, time, emotional resources and often their personal property (such as phone or computer), and more, to assist the criminal process and our society make those who have committed crimes accountable. The publication ban process is in urgent need of reform so it does not impose even greater burdens on survivors.
Publication bans do not just impact a survivor’s ability to share their story with those closest to them, these bans can also impact their ability to share their identity in a related civil lawsuit. The Ontario Superior Court recently confirmed in H.A. v S.M. that naming a plaintiff in civil pleadings where a criminal publication ban has already been ordered risks violating the ban.
For those who want to remain anonymous in their civil lawsuit (i.e. using initials or a pseudonym), a criminal publication ban can actually be of great benefit, potentially removing the usual hurdles to getting an anonymity order (see my colleague Ashley Boyes’ discussion of civil anonymity orders here). For example, and similar to the case of H.A. v. S.M., in United Kingdom of Great Britain and Northern Ireland (Attorney General) v L.A., the Nova Scotia Court of Appeal held that a related criminal publication ban continued to apply in the civil proceeding, overturning an anonymity order by the lower court on the basis that it was duplicative of the criminal ban. In both these civil cases, the plaintiffs were ordered to be identified by their initials as a direct result of the existing criminal publication bans.
While this is good news to some, for others it has the potential to derail or complicate their need to be heard and not further silenced. For those who want to use their name in a civil lawsuit where a ban is already in place, they may have to apply to the court to have the ban lifted. This can add unnecessary complexity and cost to a civil case, and delay justice and compensation for a survivor.
If you are a survivor of sexual violence and a complainant in a criminal proceeding, it is important to consider the implications of a publication ban, including on any potential future civil claim you may wish to bring. Speak with a lawyer for legal advice as early as possible.
Finally, lawyers assisting survivors with civil lawsuits must be alive to the real risks of naming a client in a pleading where there is a related criminal publication ban. The charges laid against the survivor in the case referenced above should serve as a wake up call: until the law and practices around such bans are reformed, breaches of criminal publication bans, even if inadvertent, can lead to stiff penalties and even criminal conviction.