This case concerned the Criminal Code provision which allowed prosecutors and complainants to ask for mandatory publication bans on the names and identities of sexual assault complainants.
LEAF intervened before the Supreme Court of Canada, in coalition with:
- Ontario Coalition of Rape Crisis Centres
- Barbara Schlifer Commemorative Clinic
- Women’s College Hospital Sexual Assault Care Centre Team
- Metropolitan Toronto Special Committee on Child Abuse
- Metro Action Committee on Public Violence Against Women and Children
- Broadside Communications Ltd.
- Women Health Sharing Inc.
Facts
The accused was charged with sexual assault under the Criminal Code. The complainant, his wife, applied for and was granted an order that her identity and personal information not be published in newspapers or publicly broadcasted.
Canadian Newspapers Company Ltd. made a civil application for a declaration that the Criminal Code publication ban provision was unconstitutional. The trial judge dismissed the application, finding that the provision violated the freedom of the press under s. 2(b) of the Charter, but was saved under s. 1. On appeal, the Court of Appeal removed the mandatory nature of the publication ban – meaning the trial judge had discretion to decide whether or not to grant a requested publication ban. The decision was appealed to the Supreme Court of Canada.
Coalition’s Arguments
The Coalition argued that the mandatory publication ban provision should be upheld. The provision did not violate s. 2(b) of the Charter, as Canadian Newspapers had no legitimate interest in the “expression” of names and identifying information of sexual assault complainants. Further, the provision promoted the equality rights of women by providing equal access to criminal redress for sexual violence, which disproportionately impacted women. It also enhanced the liberty and personal security of women and children, and their equal access to these rights. Making the publication ban discretionary as opposed to mandatory undermined women’s equality of expression.
Outcome
The Supreme Court of Canada found that the mandatory publication ban provision violated freedom of the press as guaranteed by s. 2(b) of the Charter. The limit on freedom of the press, however, was justifiable under s. 1 of the Charter. As a result, if requested by complainants or the prosecutor, trial judges are required to issue a publication ban on the complainant’s name and identity.
LEAF is grateful to Elizabeth Shilton and Helena Orton, counsel in this case.
Download the Coalition’s factum here.
Read the Supreme Court of Canada’s decision here.
Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].
