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#YouKnowHerName - Behind the legal fight to name Rehtaeh Parsons

Categories: Canada, Journalism, Politics

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There are so many people that play a part in what you read, see and hear on CBC News. Some of them are obvious, such as reporters, videographers, editors, technicians and program producers.

There are many unsung heroes behind the scenes that the public doesn't think about much. One group of them is in the CBC Law department. Media lawyers play a critical role in helping journalists do their jobs responsibly, and they contribute to the democratic process by pressing the legal system to be transparent.

One of the more interesting court battles of late was over a publication ban in a high-profile court case in Nova Scotia. CBC lawyer Anne Ko tells us how CBC and other media organizations worked together so we could tell the audience about what really happened to Rehtaeh Parsons.



Her name is Rehtaeh Parsons.

It took us a while to be able to say her name out loud, but now we can.

What changed? And why did things change?

Let's start from the beginning.

Last spring we were covering the trials of two youth accused charged in connection with the production and distribution of child pornography. The names of the two young men, who were minors at the time, were protected from disclosure because of a publication ban under the Youth Criminal Justice Act.

During this time, journalists and media were told that there was a publication ban over identifying Rehtaeh Parsons as the victim in this matter.

Rehtaeh's parents sent a letter urging the court to reconsider its position in light of Rehtaeh's story already being widely known, her passing, the immense public interest and importance of her story, and that the two young men would remain protected under the YCJA.

It turned out that the publication ban prohibiting the disclosure of Rehtaeh's name as the victim of these crimes was invoked under section 486.4(3) of the Canadian Criminal Code.

This section reads as follows:

In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

This meant that irrespective of the compelling letter from Rehtaeh's parents and the other variables, the publication ban against her name was mandatory under this Criminal Code section.

Nevertheless, given all the unique variables, CBC decided to spearhead a media coalition and rallied together with other interested media outlets to fight the application of the ban against identifying Rehtaeh as the victim and publishing her name.

CBC, along with the Halifax Herald, Global, and CTV, hired external counsel, Nancy Rubin, in Halifax to challenge the application of the ban over Rehtaeh's name.

We knew it was an uphill battle given the mandatory nature of the Criminal Code publication ban, as well as the intent behind the provision. The intent of the provision is to protect witnesses and victims under the age of 18 in connection with child pornography.

But our case was based on a unique and difficult situation that was not lost on Justice Jamie Campbell of the Nova Scotia Provincial Court. In his decision, released on May 20, 2014, Justice Campbell paraphrased and quoted verbatim from the letter by Rehtaeh's parents:

....[The letter] indicates their consent to the disclosure of her name. It goes beyond mere consent. They note that continuing to raise awareness of their daughter is in the public interest and that she should remain a presence in the current court proceeding. They state that knowledge about her and her story have helped facilitate legislative reform and awareness of issues relevant to Canadians. They have expressed their most vehement disagreement with the imposition of the publication ban.

Even the Crown agreed with the reasoning behind one of the media coalition's arguments to be able to publish Rehtaeh's name in connection with these crimes.

Furthermore, Justice Campbell, himself, believed that the pub ban "serves no purpose where the deceased young person's name is already well known to be associated with the case."

However, regardless of these factors, Justice Campbell concluded that he had "no choice in the matter" and that no discretion could be exercised in the application of this particular publication ban. From his judicial perspective, it was not a matter of whether the ban "serves a purpose" or "makes sense" in its application, but rather, the issue to be decided was if he retained the legal authority to not issue the order or to amend the ban's application.

On that front, Justice Campbell deemed that his court did not have such legal authority; and the legislative purpose behind the Criminal Code provision pertaining to the protection of witnesses and victims involved in child pornography remain intact.

Justice Campbell recognized that "[w]hen judges stretch the law to accommodate the needs of individual cases they risk creating precedents that are not what anyone intended." Therefore, the publication ban under section 486.4(3) remained mandatory in its application, regardless of the various factors at play.

Yet, in his decision, Justice Campbell included some interesting perspective that suggested that Nova Scotia Public Prosecution (NS PP) was in a position to provide assurances to media that they wouldn't press charges if the ban was broken and Rehtaeh was named.

Justice Campbell wrote:

The Crown, including any individual prosecutor, has the legal authority to take the position that it is not in the public interest to prosecute anyone who publishes information caught by the mandatory ban issued under s. 486.4(3) in this case based on its uniquely public nature...It is not for the court to purport to direct or even to advise or provide recommendations to the Director of Public Prosecutions. I will note however that it would be within the authority of the DPP to issue a direction to prosecutors in a specific case or in a certain classes (sic) of cases that it would not be in the public interest to prosecute. It would be within authority of the Attorney General to issue a public direction to the DPP to that same effect...

In the final paragraphs of his written decision, Justice Campbell reiterated the above and ended his decision on this note:

If the media tell the public what the public already knows because of the unique circumstances of this case, the Crown has the authority to determine whether or not it is in the public interest to prosecute and to provide precise, public and written assurances in that regard. That is a decision that can only be made by the prosecution service, not by me.

Buoyed by Justice Campbell's acknowledgement of the unique circumstances of this case and his questioning of the purpose of the section 486.4(3) pub ban in this case, we (the media coalition) approached the Director of Nova Scotia Public Prosecutions to issue the directive that Justice Campbell highlighted in the court decision.

In response to our letter, the Director, in agreement with the Nova Scotia Attorney General, declined to issue such a directive.

The Director concluded that issuing a peremptory pronouncement as suggested by Justice Campbell was "not in the public interest" and "unprecedented."

The Director went on to inform that the only public pronouncement in the 24 year history of Nova Scotia Public Prosecutions happened in 2003 in relation to firearms registration offences. But even in that case, the Director was quick to point out that the Directive was not absolute and was ultimately affected by the abolishment of the long-gun registry.

So despite our best efforts, we were stuck with the court decision and the letter from Nova Scotia Public Prosecutions outlining their position.

At this point, Rehtaeh's parents and some media wasted no time in expressing their dismay at the circumstances and the upholding of the pub ban over her name.

Some media outlets took a proactive position to expressly breach the publication ban based on principle, others broke the ban in more covert or creative ways. One notable example of the public dismay over the outcome of our collective challenge against the ban was the use of the hashtag #YouKnowHerName.

We all knew her name and many of us wanted to say it out loud.

But the law and the position of government authorities remained as it were and the media were prohibited from making that link between Rehtaeh as the victim in those youth criminal cases.

And then something surprising happened.

On December 17, 2014, more than six months after we received that letter from Nova Scotia Public Prosecutions confirming its position, Nova Scotia Justice Minister Lena Metlege Diab issued a ministerial directive that provided assurances against prosecution for the publishing and identifying of Rehtaeh as the victim.

The directive confirmed that there would be "no breach of the ban identifying Rehtaeh Parsons as the victim in the recent high-profile child pornography case, by media, or in any forum," and that there would be no prosecutions "unless her name is used in a derogatory way."

It was noted that Justice Minister Diab said it was "important for the public to discuss issues in society that affect teens."

In a follow-up email exchange between the CBC Law Department and Nova Scotia Public Prosecutions, they noted that the directive was indeed "unprecedented" and was issued as a way to deal with growing confusion and misunderstanding.

They expressed that they believed the directive would ensure that any use of Rehtaeh's name be done respectfully and that Parliament's intent to protect witnesses and victims from further harm in situations involving child pornography would be honoured.

This was a legal rollercoaster ride that ultimately resulted in an unexpected and favourable outcome.

We can finally say her name and she deserves that - and so much more than what she received.

Her name is Rehtaeh Parsons and she was reportedly sexually assaulted at the age of 15. A photograph of the incident was circulated at school and on social media. She was the victim of unconscionable cyber-bullying and attempted to commit suicide at the age of 17. A few days after her suicide attempt, Rehtaeh was taken off life support and died.

Her name is Rehtaeh Parsons and now we all know. We can finally say it out loud.

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