After the judge convicted her ex-husband of sexual assault, the Waterloo woman ordered a copy of the judge’s reasons.
She emailed her family and friends a written record (often the only way to get a copy of the decision) that the lawyer described as a “supporter.”
In doing so, she was charged with criminal charges for violating a court order. A regular publication ban imposed on her own identity as a victim of sexual assault.
Earlier this month, the woman pleaded guilty to violating a court order, as first reported by Gordon Paul of the Waterloo Regional Record, and the judge paid a $ 2,000 fine and a $ 600 victim surcharge. Was ordered.
This decision has caused anger from anti-sexual violence advocates and has been described as “ridiculous” by lawyers specializing in media law, and is currently a law aimed at protecting victims of sexual assault. It is at odds with both the use of and the actual application. Harm that can come from stigma.
The woman said, “Of course, I was the petitioner for a sexual assault trial. No doubt, the ban is to protect her interests and the interests of her children. The fact of this case is that she made it. It has to do with sending it to friends and family, so the context cannot be ignored, “said the prosecutor in a brief submission.
“As a general rule, victims should be able to talk to their circle of support about what happened without violating the publishing ban designed to protect them,” said a Toronto Star lawyer. Said Emma Carver. “It’s not” indisputable “that the ban is being enforced to protect them — it’s is It is in a place to protect them. “
In particular, the case drew police attention from a woman’s ex-husband. The person was convicted of sexually assaulting her. He was described as a “complaint” in court, but he wasn’t the one whose publication ban was intended to protect him from harm — she is.
“How could the crown think it was in the public interest to prosecute this?” Mr. Carver added after reading the agreed factual statement read out in court.
According to those facts, the ex-husband told police that a transcript was sent to him via Facebook Messenger. According to a statement of facts agreed, the woman did not know how the copy arrived at her ex-husband, but admitted to police that she had emailed it to a group of family and friends.
The agreed fact statement does not state that the transcript was posted on publicly accessible forums on social media, or whether female children are also specifically banned from publication.
The wording of Article 486.4 of the Criminal Code states that “information that can identify a victim or witness must not be published, broadcast or transmitted in any document.”
In this case, emailing the transcript without editing all the identifying information could be a particular act of “sending”, but it is a small number of people who are already familiar with the case. Justin Safayeni, a lawyer specializing in media and defamation law, said the actual effect was “really ridiculous” in the case of a ban.
He said the woman could have coffee with people in the same group and read the decision to them without violating court orders.
She could also have told them that they could order a copy of the decision themselves from the court, as she did.
Cases involving ban violations tend to focus on the media or other people who share information that is not protected by the ban. According to Carver, the definition of what exactly constitutes publishing, broadcasting, or “some form of transmission” is somewhat unclear when it comes to private communications, especially when it comes to new technologies, including social media.
Part of the breach that a woman would have effectively identified herself as a victim of sexual assault by sharing her decision by email, even if her identity had been completely edited. It is also unknown whether it was.
If so, the impact is ridiculous, Carver said.
Should victims of sexual assault be prohibited from personally discussing their experience on the support network via Facebook text, email, or private messages? What if a woman wants to contact a reporter about her case?
“This is a ban on publication, not a mysterious order,” Mr. Carver said, adding that freedom of expression and the impact of the decision on trials. “In a society that respects freedom of speech, freedom of expression, and the rights of victims, that is not the answer.”
She said there was at least one court decision to take the view that “communication” should include an element of “widespread dissemination.”
In the 2017 Alberta proceedings, the judge wrote: “In the context of (publishing) bans, the terms” transmit “and” broadcast “seem to be comfortably interpreted as being associated with widespread dissemination. This is consistent with the fact that the publication ban does not prohibit access to information that is prohibited in searching court records or in conversations with victims. “
When a publication ban on the identity of a victim of sexual assault is enforced, the victim usually has to file a court application to lift the ban if he wants to speak publicly about his case. You may not know how to navigate the court process and resources for hiring a lawyer.
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It is also unclear how the victims are thoroughly informed about how they are allowed to talk about their case within the ban.
However, there is also a big gap between wanting to share the facts of the case publicly in the media and personally sharing the court’s decision with a close friend.
According to Safayeni, it would be very disappointing if the victims had to go to court to ask if they could share their case decisions with a small support network.
A victim of sexual assault in Ontario was fined $ 2,000 for breaking her own identity ban. According to experts, the incident is as bad as it sounds.