Tammy and Kevin Goforth case sparks publication ban debate

The four-year-old girl.

That's all the brown-eyed, chubby-cheeked foster child could be called during a three-week murder trial in Regina that detailed how she was restrained with tape, and starved to skin and bones until her heart finally gave out.

A publication ban has prohibited anyone, even her own mother, from saying her name in media reports. And that remains the case as the family gives victim impact statements Friday at the sentencing hearing of Tammy and Kevin Goforth, who had been caring for the girl, and who were convicted earlier this month in her death.

When the person is deceased, the pub ban doesn't protect them. It erases them.- Glenn Canning, father of Rehtaeh Parsons

Despite the publication ban, the girl's mother resolutely wore a grey sweatshirt emblazoned with her daughter's name inside the courtroom during the trial.

Nearly every day, she and family members waved placards outside the courthouse and chanted "justice for [daughter's name]."

The name was carefully chosen for the girl to honour a beloved grandmother.

The child's face and name were publicly reported and well known for nearly four years as people in Regina awaited the Goforths' trial. 

On Feb. 6, Tammy Goforth, 39, was found guilty of second-degree murder and her 40-year-old husband was convicted of manslaughter.

At the sentencing hearing, the girl's family will freely and lovingly say her name.

But, against their wishes, it will be edited out of publications.

"I don't see any privacy interests for the individual victim because the individual victim has unfortunately died," said Lisa Taylor, a Ryerson University journalism professor in Toronto and former lawyer.

Taylor has studied publication bans and concluded they are often applied too broadly and at the expense of the public interest.

"When we start to look at the fact [that] this case involved a child in care, a child whose well-being should have been supported by the state ... this is of vital, public interest," Taylor argued.

Publication bans

On the first day of trial, the Crown chose to request a publication ban, under Sec. 486.4 of the Criminal Code, to conceal the girl's name and identity. 

Publication ban laws are typically intended to preserve the right to a fair trial and protect the privacy of a vulnerable person, such as a sex crime victim or young offender.

"Many of these make perfect sense when protecting a victim from further shaming or further victimization," Halifax privacy lawyer David Fraser said. "The legislation seems to presuppose that there is a live victim who needs to be protected. So when you don't have that, the legislation doesn't seem to handle that very well."

In the Goforth trial, Crown prosecutor Kim Jones made the request, in part, to protect the identity of a second victim who survived.

After the request was made, Justice Ellen Gunn had no discretion but to institute the publication ban. The new Canadian Victims Bill of Rights, which came into force in July, now stipulates that publication bans are mandatory upon application of the prosecutor in all cases involving victims under age 18.

CBC's senior legal counsel made a submission to the Crown prosecutor to narrow its submission to only ban the identity of the second foster child, who doesn't share the same name as the deceased.

The request was denied.

In January 2015, the Toronto Star successfully fought a court-imposed ban on the identity of two-year-old Matinah, as well as her parents, who killed her.

The Crown had originally requested the ban to protect the identities of Matinah's surviving siblings. However, it later reversed its position and a judge agreed that the ban didn't actually help those siblings.

#YouKnowHerName​

Nova Scotia teenager Rehtaeh Parsons's father, Glen Canning, knows too well the frustration of being muzzled by an unwelcome publication ban.

"When the person is deceased, the pub ban doesn't protect them. It erases them," Canning told CBC News.

His daughter died after attempting suicide as a result of relentless cyberbullying. A photograph of an alleged sexual assault against her was circulated at school and on social media.

As a victim of child pornography, a mandatory Criminal Code ban prohibited the publication of Parsons's identity in the criminal trial last year. 

"We were insulted. It was such a cold thing to do," said Canning. "It felt like she was stolen from us a second time."

A campaign to restore her identity used the hashtag #YouKnowHerName.

Judge Jamie Campbell, who said he had no choice but to uphold the ban, wrote in his decision "the ban serves no purpose."

Eventually, Nova Scotia's attorney general instructed that no one would be prosecuted for publishing Rehtaeh's name in a non-derogatory way.