Judge overturns conviction of Ontario sexual assault victim who broke publication ban on her own name
Lawyer for Kitchener woman hopes decision is 'an educational jumping off point' for justice system
An Ontario judge has set aside the conviction of a Kitchener sexual assault victim who was fined after she pleaded guilty to breaking a publication ban protecting her identity.
The woman, known in court as C.L., was fined in March.
On Thursday, in a virtual hearing to appeal C.L.'s conviction, lawyer Robin Parker told a Kitchener court that she was sexually assaulted by her ex-husband.
Parker said the trial judge described it as a "violent attack" and the accused's "sense of entitlement and lack of respect for the victim's autonomy was shocking."
Parker said C.L. was not in court when the Crown asked for a publication ban at the start of the assault case, adding the ban was not discussed with C.L. and she didn't consent to it.
The publication ban remains in place.
C.L. emailed the written reasons for the judgment to some family and friends. The transcript identified C.L. and her ex-husband, who was convicted of sexually assaulting her.
The ex-husband complained to the police, "and C.L. was criminally charged and prosecuted and convicted," Parker told the court.
She was fined $2,000 and ordered to pay a victim fine surcharge.
'That shield was turned into a sword'
Parker said the law is clear it's not a breach of a publication ban to email a decision to a small group.
"If that were the law, it would indeed have a far-reaching effect not just on victims, but on media and civil society."
In court on Thursday, Crown Julia Forward said her office conceded C.L.'s appeal.
Forward said although C.L. pleaded guilty, the charge of obstructing justice should not have been laid.
"There was a jurisdictional error. It's the Crown's position that the conviction cannot stand and I'm requesting that the appeal be allowed."
Justice Paul Sweeney agreed and set aside C.L.'s conviction. As well, all money C.L. paid in fines would be returned to her.
Parker said Thursday's decision was the right one, but it's concerning the case got so far and "it should have been stopped before it got to this point."
"The purpose of publication bans in sex assault cases is to protect the privacy of complainants because of the shame and stigma that unfortunately exists around reporting."
Publication bans, though, have become another vehicle to take away autonomy from victims.
"In this case, that shield was turned into a sword that C.L.'s convicted attacker took up to use against her and the system let him," said Parker.
Parker said it's hoped this case will be used for future education within the justice system.
"C.L. does not want what happened to her to be in vain."
The case received national attention after C.L. pleaded guilty in March.
Ottawa lawyer Emilie Taman told Matt Galloway, host of CBC Radio's The Current, that the case was a "miscarriage of justice."
"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," Taman said in the interview last month.
In this case, that shield was turned into a sword that C.L.'s convicted attacker took up to use against her and the system let him.- Lawyer Robin Parker
"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."
In an interview after the decision was handed down on Thursday, Parker told CBC Kitchener-Waterloo she was not surprised by the attention the case received.
"The case itself is really unusual and it begs the question that everybody asks, 'How did this happen?'" she said. "How did so many people fail C.L., from the police who decided to charge her to the Crown's office who decided it was in the public's interest to proceed and to the system overall? It's mind boggling."
'Educational jumping off point'
Parker said the entire section of the law relating to publication bans is "crying out" for reform. Police, Crown attorneys and judges should make it very clear to victims what a publication ban means, she said.
Parker said while C.L. does not want to be named, other victims might, and it should be their right and ability to do so.
"It needs to be easy and straightforward for publication bans to be lifted at the victim's request," she said.
Parker also said the only concern she had with the latest decision was the Crown conceded the case, which meant the facts weren't laid out before the court.
"The court never hears all of the facts and never writes decisions about what happened so that other people can learn from it," she said.
"When we say that we hope that what happened isn't in vain, we'd like this case to become an educational jumping off point in terms of providing educational training to the court, to Crown's offices, about the experience of victims in the justice system."