After a judge convicted her ex-husband of sexually assaulting her, a Waterloo woman ordered a transcript of the judge’s reasons.
She emailed the transcript — often the only way to obtain a copy of a decision — to some family and friends, described by her lawyer as her “support persons.”
For doing so she was criminally charged with violating a court order: the routine publication ban imposed on her own identity as a sexual assault victim.
Earlier this month, as first reported by Gordon Paul of the Waterloo Region Record, the woman pleaded guilty to violating a court order and was ordered by a judge to pay a fine of $ 2,000 plus an additional $ 600 victim surcharge.
The decision has sparked outrage from anti-sexual violence advocate groups and been described by lawyers who specialize in media law as “absurd” and at odds with both the current use of technology and the practical application of a law intended to protect sexual assault victims from the harm that can come from stigma.
The woman was, “of course, the complainant in the sexual assault trial. Arguably, the publication ban is there to protect her interests and the interests of her children. The facts of this case relate to her sending that to friends and family. So that context cannot be ignored,” said the Crown prosecutor in brief submissions.
“As a general principle, victims should be able to speak to their circle of support about what happened without violating a publication ban designed to protect them,” said Emma Carver, counsel for the Toronto Star. “It’s not ‘arguable’ that the ban is in place to protect them — it is in place to protect them.”
Notably, the case came to the attention of police from the woman’s ex-husband, the person accused and then convicted of sexually assaulting her. Although he was described in court as the “complainant,” he is not the person the publication ban is intended to protect from harm — she is.
“How could the Crown ever think there was a public interest in prosecuting this?” Carver added, after reading the agreed statement of facts read out in court.
According to those facts, the ex-husband told police the transcript was sent to him via Facebook messenger. The woman did not know how the transcript got to her ex-husband, according to the agreed statement of facts, but she admitted to police that she emailed it to a group of family and friends.
The agreed statement of facts does not say the transcript was posted in a publicly accessible forum on social media, or whether the woman’s children are also specifically the subject of the publication ban.
The wording of section 486.4 of the Criminal Code says 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.”
In this case, emailing the transcript with all identifying information unredacted is the likely the specific act of “transmission,” but given that it was to a small group of people who are already familiar with the case, by the person who is the subject of the publication ban, the practical effect is “ridiculous, if you really think about it,” said lawyer Justin Safayeni, who specializes in media and defamation law.
The woman could have had coffee with the same group of people and read them the decision without breaching the court order, he said.
She could have also told them they could order a transcript of the decision themselves from the court, as she did.
Cases involving publication ban breaches tend to focus on media, or on other people sharing information who are not the person protected by the publication ban. The definition of what exactly constitutes publication, broadcast or “transmission in any way” when it comes to private communications are also somewhat unclear, particularly when it comes to newer technology including social media, Carver said.
It is also unclear if part of the breach was that the woman would have effectively identified herself as a victim of sexual assault by sharing the decision in an email, even if her identity had been fully redacted.
If so, the implications are absurd, Carver said.
Should victims of sexual assault be prohibited from privately discussing their experience with their support network via texts, emails or private messages on Facebook? What if the woman wanted to communicate with a reporter about her case?
“It’s a publication ban, not a muzzling order,” said Carver, adding that there are freedom of expression and open court implications from the decision. “That cannot be the answer in a society that values free speech and freedom of expression and victims’ rights.”
She said there is at least one court decision that takes the view that “transmitting” should involve an element of “broad dissemination.”
In a 2017 Alberta case, a judge wrote: “In the context of a (publication) ban, both the words ‘transmitting’ and ‘broadcasting’ seem comfortably interpreted as relating to broad dissemination. That is consistent with the fact that a publication ban does not prohibit access to the prohibited information in a search of court records, or in conversation with those acquainted with the victim.”
Once a publication ban over a sexual assault victim’s identity is in place, the victim typically has to file a court application to lift the ban if they want to speak publicly about their case — a practice that has been viewed by some as burden to victims who may not know how to navigate the court process or the resources to hire a lawyer.
It’s also unclear how thoroughly victims are informed about how they are permitted to speak about their case within the confines of a publication ban — they are not always asked whether they even want one in the first place.
But there is also a large gulf between wanting to have the facts of the case shared publicly in the media and wanting to privately share the court’s decision with close friends.
It would be extremely unfortunate if a victim had to go to court to ask if they could share the decision in their case with a small support network, Safayeni said.