Left to right: Jade Neilson, Carrie Low, Brandy Mullen, Kelly Favro, and Morrell Andrews, members of My Voice, My Choice, in Ottawa on May 3. As survivors of sexual assault, the group of women are working together to push the government to enact legislation to give victims the ability to opt in or out of publication bans regarding their cases.Jessica Deeks/The Globe and Mail
Survivors of sexual violence are lauding changes to Canada’s Criminal Code set to give victims more say in courtroom publication bans that previously barred them from speaking publicly.
Advocates believe the amendments passed late last month will give victims of sexual offences more agency, this in the face of a legal system many felt was haphazard and paternalistic in forcefully shrouding survivors’ stories in secrecy.
The changes are bringing new clarity to a labyrinthian legal process that frequently left victims in the dark and threatened with legal liability for sharing their stories, even in cases in which they were unaware their identities had been shielded by publication bans.
“One of the bedrocks of this legislation … was the idea of knowledge and autonomy for sexual assault complainants,” said Robin Parker, a Toronto lawyer and former federal Crown attorney who testified to a justice committee on the issue.
“It makes it harder to prosecute complainants. It makes it easier to get publication bans imposed and easier to get them lifted,” Ms. Parker said. “And all of that is a step in the right direction.”
Legal experts argue the new updates will make it practically impossible to criminalize complainants for violating a ban on their own name. Previously, complainants who broke their bans risked up to two years in jail, with the possibility of additional fines.
Now, victims are allowed to disclose their own individual information, “in any forum and for any purpose,” as long as they don’t intentionally or recklessly identify other victims whose own names are protected.
Complainants who share their stories with a legal professional, health care provider or anyone in a relationship of trust with them also can’t be criminalized.
Crucially, people accused of sexual offences will not be able to make submissions when complainants in their cases seek to lift their own publication bans. Previously, some judges would give the accused a say when their victims sought to go public – a scenario survivors have described as a violation.
For all the new changes, this one felt most significant for Victoria’s Kelly Favro, who worked with My Voice, My Choice, an advocacy group of survivors, to change Canada’s publication ban law.
The man convicted of sexual assaulting Ms. Favro was allowed to stand up in front of a judge during the criminal court case and argue that she be indefinitely silenced.
“That was a huge slap in the face,” Ms. Favro said.
To her, the new Criminal Code prohibition on this practice is major step forward: “It is such a win for women, because we’re no longer asking for permission to speak.”
The changes set out a clearer path to removing or changing a publication ban. Prosecutors must now inform complainants of the existence of these bans and their rights to modify or revoke the orders. If complainants request their bans be lifted, Crowns need to apply on their behalf. Judges must grant these requests, unless the process risks violating the privacy of another person protected by a separate publication ban, in which case a hearing must be called.
“Before, it was kind of wild west when people would come and ask to remove their pub bans,” said Morrell Andrews, a Vancouver federal civil servant who led the push to change publication ban laws after her own experiences as a sexual-assault complainant.
“For the many years we’ve been doing this work, no one – whether it was judges, Crowns, victims, advocates, victim service workers – had a full grasp of what the law meant. Now at least we have clarity.”
The changes strike a good balance between the interests of victims who want their privacy protected and those who want to go public, said Pam Hrick, executive director and general counsel at Women’s Legal Education and Action Fund.
“Survivors should be able to exercise agency and choice in whether or not to have a publication ban on their identity,” Ms. Hrick said.
Prosecutors can still request that bans be immediately imposed at the outset of court cases, to preserve the rights of complainants who want their identities concealed. Afterward, Crowns must take steps to remove the orders for those who don’t want to be shielded this way.
Advocates hoped the bill would go further on several fronts.
“What’s missing is any obligation to inform the victim before a pub ban is unilaterally put on their name without their knowledge, consent or wishes,” Ms. Andrews said.
Also missing are any provisions for families of deceased victims who’d like to lift bans placed on their loved ones’ names.
Advocates are urging training on the new changes for judges, prosecutors, lawyers in the private bar and victims’ services – so it’s not “on the backs of survivors to have to flag this to anybody,” Ms. Hrick said.
Complainants also need more information on their new legal rights, said Ms. Favro, who’d hoped victims would get written notification when courts impose bans in their names. Instead, prosecutors got vague instructions to contact complainants “as soon as feasible.”
Ultimately, Ms. Favro sees the moment as an evolution for a legal system criticized for years as careless with victims of sexual violence.
“We are eight women from across Canada who were either not believed right from the get-go, or were shattered on the witness stand,” Ms. Favro said of My Voice My Choice. “Somehow we all came together and changed the law.”