Canada’s first victim of sexual assault to be prosecuted for violating the publication ban on her own name is appealing the conviction even though she pleaded guilty and agreed that her plea amounted to a confession.
The notice of appeal, filed on Wednesday in Ontario Superior Court, highlights the treatment of sexual-assault complainants in the criminal-justice system. Publication bans are routinely applied in sexual-assault cases under federal law to protect the identity of complainants. The stated aim is to promote reporting of crime and hold offenders accountable.
Making the case not merely egregious but difficult to believe, women’s advocates say, is that the complainant in the publication-ban prosecution was the man convicted of sexually assaulting her – her ex-husband, whose identity is protected only because any mention of his name would identify her. He had been sentenced to a year in jail for a violent sexual assault that occurred with their two children sleeping nearby.
Sex-assault victim’s breaking of publication ban results in calls for legal, policy changes
“It just boggles my mind,” the woman’s new lawyer, Robin Parker, a former federal Crown attorney, said in an interview, “that someone in the Crown’s office sat down and thought it was important to prosecute without considering the larger impact it would have” on her client and victims generally. She said the conviction, if not quashed, will have a chilling effect on the already low levels of reporting of sexual assault.
Also shocking, she said, was that Ontario prosecutors not only turned “the machinery of the state on a sex-assault victim,” but “they didn’t appear to have turned their mind to whether or not what she had done was actually a crime.” Ms. Parker’s notice of appeal argues it was not a crime, because the woman had no intent to violate the law and because she did not widely disseminate the ruling, but merely sent it to family and friends who already knew her identity.
Federal law says a judge in a sexual-assault case may order that “any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.”
Specialists in sexual-assault law and women’s advocates in several provinces told The Globe and Mail the conviction of a victim for violating a ban on her own identity appears to be unprecedented.
The appeal is also unusual, because of the woman’s guilty plea and because she had legal counsel when she made that plea. A statement of facts presented jointly by regional Crown counsel Brian White and her defence lawyer, Valeria Ruoso, to Ontario Court Justice Thomas McKay on March 17, said the statement would be understood to be a confession in any subsequent legal proceeding.
The appeal leaves Ontario with a decision to make: whether the Ministry of the Attorney-General wishes to fight for a conviction and fine that are now in the public eye. “As this matter is in the appeal period, it would be inappropriate to comment,” spokesman Brian Gray said in an e-mail.
The woman, who is in her 40s, is also appealing her $2,600 fine, though it, too, was requested in a joint submission by Mr. White, the prosecutor, and Ms. Ruoso, her defence counsel.
The notice of appeal says the fine – which includes a $600 surcharge to pay for government-subsidized services for victims – “brings the administration of justice into disrepute and is contrary to the public interest.”
The woman’s ex-husband was convicted of sexually assaulting her in the context of an acrimonious divorce in September, 2019, by Ontario Court Justice Karey Katzsch. The ruling was not published, and the victim ordered a transcript from the court.
A transcript from the March hearing shows Justice McKay chiding the woman. “I understand sort of the emotional impact, being a victim of a crime. I know that a crime such as this, it is particularly personal and people have a reaction to that. That being said, court orders have to be followed, particularly ones that deal with people’s privacy.”
The reason the woman pleaded guilty and accepted the fine, Ms. Parker said, was that “the Crown told her lawyer at the time that he was gunning for a conviction. … she was worn down and she was just broken by the system.” She was involved in a divorce where custody was at issue, and had endured difficult criminal proceedings as the complainant in the sexual-assault trial.
She decided to appeal “because what happened was a complete travesty of justice,” Ms. Parker said. The conviction would leave her with a criminal record that could affect her ability to enter the United States or apply for certain jobs.
“And she is not a criminal. She is a victim. Throughout the sentencing hearing the Crown kept referring to her as the complainant in a sexual-assault case. She wasn’t the complainant any more. She was a victim.”
Constance Backhouse, a University of Ottawa law professor and historian, said that the appeal is “very good news,” and the legal strategy was an innovative one.
“The hurdles are not insurmountable”, Anthony Moustacalis, a former head of the Criminal Lawyers‘ Association, said in an interview.
“Is it difficult? Yes. Is it impossible? No. Like all things in law, it’s fact specific.”
(Mr. Moustacalis has no involvement in the case.)
Ms. Ruoso declined to comment, and Mr. White did not reply to a request for comment.
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Update: April 2021
“Recently the federal justice minister announced public consultation on the creation of an independent Criminal Case Review Commission. The team is headed by notable and progressive retired Judges including The Honourable Harry Laforme and the Honourable Juanita Westmoreland-Traoré. We have seen how long it takes to reverse injustice on major cases, such as Mr. Assoun’s case. In order to be effective, such a commission needs to be well-funded to permit access to all Canadians who complain of wrongful convictions. My concern is that such a commission needs to be broad enough in scope to quickly and effectively examine all cases, great and small, jury and non-jury. Cases, such as sexual assault, which are victim sensitive, should still be able to be reviewed as the opportunity for injustice can be overwhelming to the individual convicted. Many victim rights groups are calling for alternatives to the Criminal Court system which is stressful to survivors and not always what they want. Regardless, given the complications with these cases, a robust review mechanism for all potential wrongful convictions must be afforded to all Canadians.
In addition broad powers need to be considered. Some are obvious such as the power to summon witnesses and records. Others, would be progressive, such as the right to recommend true pardons, release from custody pending determination of cases, and the appointment of lawyers with fair remuneration, to ensure proper treatment of these cases.
I look forward to the consultation process and invite all colleagues to make submissions.
