Judge quashes fine for sex assault victim over publication ban,

Sexual assault victim had been penalized for email that identified herself

A Superior Court judge has overturned the conviction of a Waterloo sexual assault victim fined $2,000 for breaching the publication ban on her own identity by emailing a transcript of the court decision in her case to a small group of supporters.

The case, first reported in March by the Waterloo Region Record, had sparked outrage across the province over the questionable legal basis for the breach and the further victimization of a sexual assault survivor by the man who sexually assaulted her.

In a brief appeal court hearing Thursday, Crown prosecutor Julia Forward said the Crown was conceding the appeal based on a legal technicality — that the woman entered a guilty plea under the wrong section of the Criminal Code for the alleged offence.

“As a result of that, there was jurisdictional error. It’s the Crown’s position that the conviction cannot stand,” Forward said, adding that the Crown would not be prosecuting the woman under a different section of the Criminal Code.

The $2,000 fine and the additional $600 victim surcharge will be returned.

Robin Parker, the lawyer for the sexual assault victim whose identity remains under a publication ban, said they are very grateful the legal ordeal has come to an end, but that it should never have happened in the first place.

“Our position has always been that the law is clear that it is not a breach of a publication ban to email a decision to a small group. If that were the law it would have a far-reaching effect not just on victims but media and civil society,” Parker said, noting that, had the appeal gone forward, several groups were prepared to make submissions.

“Equally concerning is how this case got so far without someone asking, is this in the public interest?”

The Crown did not apologize for the prosecution or say it should not have happened.

After court, Parker said it “would have been nice to hear the Crown today say it was not in the public interest to prosecute a sexual assault complainant for emailing the reasons for conviction to family and friends.”

She said the case highlights an urgent need for legal reform, including rewriting the confusing and poorly written section of the Criminal Code dealing with the publication ban to prevent abusers from further harming victims.

Parker pointed out that the alleged breach of the publication ban only came to police attention through the woman’s exhusband, who was convicted of sexually assaulting her in what the court called an “extremely serious and violent attack.”

The intent of such a publication ban is to protect complainants from the shame and stigma that still surrounds sexual violence but in this case “that shield was turned into a sword that (the victim’s) attacker took up to use against her and the system let him,” Parker told the court Thursday.

According to a transcript of the guilty plea hearing, the man was forwarded a copy of the transcript via a Facebook message from an unknown person. The victim later admitted to police that she had shared the transcript with a small group of supporters, including family and friends, but did not know how the transcript had been shared with her ex-husband, according to the agreed facts.

Sara Casselman, the executive director of the Sexual Assault Support Centre of Waterloo Region, said she is overjoyed by the conviction being overturned but disappointed that the Crown didn’t make a stronger statement given the harm caused to both the sexual assault victim who was criminalized and to the many sexual assault survivors who came forward to her worried the same thing could happen to them.

If the publication ban exists to encourage sexual assault victims to make police reports, “this prosecution had the exact opposite effect,” Casselman said.

A media coalition led by the Canadian Media Lawyers Association was prepared to argue the Waterloo court decision makes it difficult if not impossible for sexual assault victims to communicate with journalists for the purpose of telling their stories, which could violate their charter rights including freedom of expression.

Parker said she hopes this case will result in further training for Crowns on the use of publication bans. “(She) does not want what happened to her to be in vain.”