Case of sex assault victim fined for breaking publication ban divides legal community
Ottawa mulls legislation that would require federally appointed judges to undergo sexual assault training
An Ottawa lawyer says it's a "miscarriage of justice" that an Ontario sexual assault victim was fined for breaking a publication ban protecting her own identity.
"Public confidence — to the extent that there is any — in the court's ability to adequately manage sexual assault cases is so fragile as it is," Emilie Taman told The Current's Matt Galloway.
"Every time you have a case like this, it sends a message to people who may wish to come forward with allegations of sexual assault that this is going to be a process that is going to wear you down until you have no dignity left at all."
The woman at the centre of the Kitchener, Ont., case pleaded guilty to breaking a publication ban last month after emailing a transcript of a court ruling to her family and friends, the Globe and Mail reported. She was ordered to pay a $2,000 fine and a $600 victim surcharge as a result.
I think [it] is just really concerning that justice system participants would allow themselves to be implicated in this kind of abuse.- Emilie Taman, lawyer
The transcript the woman emailed out contained a judge's reasons for convicting her ex-husband of sexually assaulting her. It also identified them both. The Waterloo Region Record reported that the woman's lawyer said her client believed it was OK to share the transcript with family and friends, who already knew the identities of the victim and the man charged.
The newspaper said someone other than the sexual assault victim then sent the transcript to a friend of the ex-husband, and that the ex-husband contacted police. He was the one who complained to the court that the woman violated the publication ban.
The woman on Wednesday filed an appeal to overturn her conviction. She is believed to be the first sexual assault victim in the country to be convicted for such an offence, according to the Globe.
Publication bans are routinely used in sexual assault cases to protect victims from being identified. Violating them is a Criminal Code offence.
The Current is not naming the woman or her ex-husband because the publication ban is still in effect. Identifying the man could also reveal her identity.
Victim's ex 'weaponizing' justice system: Taman
Taman said she's shocked by the case and doesn't believe the public interest prevailed.
She said it concerns her that the woman's ex-husband, who was convicted of sexually assaulting her, is the one who raised the violation of the publication ban. Taman described him as "weaponizing the justice system to further harass and victimize" his ex-wife.
"I think [it] is just really concerning that justice system participants would allow themselves to be implicated in this kind of abuse," she said.
Colin Westman, a retired Ontario court judge in Kitchener-Waterloo, is also disappointed by the outcome of the case.
He said it's in the public interest to have people obey publication bans, but that in this particular case, the violation does not justify a conviction and fine.
Had he been the presiding judge, Westman said, he would have granted a conditional discharge. In a conditional discharge, a person is found guilty but no conviction is registered, and the offender is required to meet probation conditions.
"The irony is that all those people [who received the transcript] could have gone to the courthouse and sat and listened to the case," Westman told Galloway. "And they knew her role in it."
Appeal would have revictimized woman: survivor
But some people agree with the judge's ruling to convict the woman for violating the publication ban.
Ari Goldkind, a criminal defence lawyer in Toronto, said the justice system needed to "make an example out of this one case to deter anybody else from doing this."
The courts aren't just concerned with this particular woman, he said, but with ensuring they can protect the identities of other victims who do not want their names revealed because of safety concerns. He said that since the woman had a defence lawyer, she could have challenged the charge against her.
"She … could easily have set a trial, could easily have said not guilty, and brought all sorts of challenges," Goldkind said.
The lawyer for the woman at the centre of the case told As It Happens that her client decided to plead guilty rather than go to trial because she was tired. She had just been through a "violent divorce" and a great deal of trauma, her lawyer said.
Bekah D'Aoust, a sexual assault survivor who successfully petitioned to have a publication ban on her name removed in 2019, said she was surprised by Goldkind's response.
Going to trial could revictimize the woman and create a significant financial burden for her, she said.
"Putting her through a lengthy appeal process after just going through the process she just went through? I would probably have done the same thing as her [and] plead guilty," said D'Aoust.
"It's an incredibly difficult position for her to be in."
Controversy over the publication ban case comes as Ottawa is reviewing legislation that would require federally appointed judges to undergo sexual assault training.
Taman said judges already receive training on sexual assault, and that while more education is always good, she has a hard time imagining what kind of training would have helped in this situation.
"To me, the problems here are overwhelmingly in the area of general common sense," Taman said. "And I'm not sure what substantive training this judge could have received that would have changed the outcome of this case."
Written by Kirsten Fenn. Produced by Rachel Levy-McLaughlin and Joana Draghici.
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