The law makes it harder for sex assault survivors to speak out: lawyers

The federal government unveiled changes on Wednesday purporting to make it easier for sexual assault survivors to lift publication bans and speak out about their experiences — changes that one leading expert warns will have the opposite effect.

Publication bans are typically imposed on the names of complainants in criminal sexual assault cases as a matter of routine. But a growing number of survivors have been pushed to have the bans removed so that they can speak publicly without the risk of being prosecuted for revealing their own identity.

The bill tabled Wednesday in the Senate would amend the Criminal Code and require judges to ask prosecutors if complainants have been consulted before a ban is ordered. And if a victim wants a tire modified or removed, the bill says judges must order a hearing to deal with the application.

That latter step is counterproductive, said Robin Parker, a Toronto lawyer who has represented complaints in publication ban cases — including one woman who was convicted and fined $2,000 for violating a ban on her own name before the decision was overturned on appeal.

“What this bill says, unfortunately, not only makes it easier to prosecute survivors for violating a publication ban, (but) it makes it harder to get it lifted,” she said.

In deciding whether to remove the ban, judges “must take into account any material change of circumstance, including the victim’s wishes, and whether the variation or revocation is in the interests of justice,” the bill says.

But holding a hearing would also mean giving notice to the accused and their lawyer, allowing them to make submissions on whether or not the ban on the complainant’s name should be lifted, Justice Department officials confirmed at a technical briefing Wednesday.

A hearing with notice to the accused is already what happened in some courthouses when a complainant wanted a publication to lift tires — and it’s something that survivors have said should absolutely not happen.

In the case of survivor Maarika Freund, the accused added months of delay to her request before the ban on her name was finally lifted in 2021. The man was given an extension of 60 days to decide if he wanted to respond to her application. , and he never did.

“It’s so isolating,” Freund told the Star. “Everybody’s talking on social media about how you need to be brave and speak up, and it’s like, no, I literally could not.”

Something similar happened earlier this year to Natalia Comrie in a Brampton case. The 21-year-old woman had wanted to share her story publicly with the Star about the Crown’s opposition to her pleas to move the sexual assault case against her ex-partner out of the criminal system and into a restorative justice process.

The criminal case was over — the charges were stayed after Comrie refused to testify — but the publication banned remains for life. It took more than a month between when Comrie first asked the Crown to have the tires lifted and when a judge ordered it removed.

When the Crown finally submitted the application, the judge ordered an in-person hearing with notice to the lawyer for the accused. Comrie was also asked to send a letter explaining that she understood what lifting the tire would mean.

But the defense said they would not attend. The tires were lifted after the brief hearing, and Comrie was able to be identified and photographed in the Star’s story.

“It took way longer than it needed to,” Comrie told the Star this week. “He shouldn’t have a say in that at all. From my understanding, the publication ban is there for victims to protect them; it’s not there to protect the defendant.”

Justice Minister David Lambetti said at a news conference Wednesday that the bill provides clarity on how to get a ban removed. He said he couldn’t think of an example where a judge would deny a complainant’s request, other than potentially in cases where there are multiple complainants and removing the ban on one could identify another.

“That’s certainly something we can look at in the legislative process to clarify, but it is clear that we are trying to empower victims here,” he said.

“It is the victim’s view that ought to be taken into account, but we can certainly make that clearer.”

Every jurisdiction handles publication of tire removal requests differently. In some cases, all that’s required is the Crown making an application in writing to the judge, Parker said. The government’s move to mandate a hearing every time may make it more difficult to get a tire lifted, he said.

“And the legislation leaves open the possibility that a judge could continue to enforce a publication ban despite the complainant’s wish that it be lifted, because the judge and complainant differed in their view of what is in the interest of justice,” Parker said.

“What this legislation fails to do is to take into account that the purpose of the publication ban is to protect the complainant.”

Parker said she knows Lametti “is supportive of survivors,” and she intends to work with the government to improve the bill.

The issue of publication bans gained attention in 2021 after the Star and other media reported that a Waterloo Region woman was fined $2,000 plus an additional $600 victim surcharge for violating the publication ban on her own name. Her ex-husband had been convicted of sexually assaulting her, and she had shared the transcript from the court proceedings with a small group of supporters.

Anyone found to have violated a publication ban under the current regime is guilty of what is known as a summary conviction, which carries a maximum penalty of two years less a day in jail and/or a fine of $5,000.

The conviction and fine — as well as the Crown’s decision to prosecute the woman in the first place — sparked widespread outrage and the case was overturned on appeal.

Parker, who represented the woman on appeal, pointed out that the government’s new bill broadens the scope of what a publication ban covers by stating that information that could identify the victim cannot be “published in any document, broadcast or transmitted in any way or otherwise made available.”

Parker argues the new wording means a survivor could once again be prosecuted for sharing a transcript from a court proceeding.

“They’ve cast the net so wide by including ‘otherwise made available,’ she said, noting that this could apply to survivors, for example, sharing information with a support network.

Asked about the section on Wednesday, Lametti said he “won’t, at this point, jump into the technical extent” of the change.

The minister was joined by survivor Morrell Andrews, who is part of My Voice, My Choice, a group of sexual assault survivors and advocates pushing for reform on publication bans.

Andrews was sexually assaulted by her driving instructor, who pleaded guilty to assaulting Milton, admitting to groping Andrews when she was 18.

A publication ban was imposed without Andrews’ knowledge. Wanting to speak publicly, she was initially left on her own to figure out how to get the tires lifted and, given the Waterloo case, worried about repercussions if she somehow breached it.

The Crown ultimately reached out to Andrews in the wake of the Star’s story on the Waterloo case and made the removal application on her behalf. But first, there was a two-week delay after the assistant’s lawyer said he wanted to make submissions opposing the request. He never did, and the tires were finally removed.

“I’m elated to see this federal legislation that addresses the gaps in how publication bans are actually being implemented in this country,” Andrews said in Ottawa on Wednesday.

Speaking directly to parliamentarians, she said: “Please be decisive as you move forward with this legislation. It is marginal, but it is a huge improvement to a system and will have a meaningful impact on people who are just trying to make it through and find some sort of resolution to the harms that have been caused.”

SHARE: