Jordyn Haukaas, Freelancer

Sexual assault survivors have gained the support of Victoria MP Laurel Collins in a longstanding fight to change legislation that places publication bans on survivors’ names without their consent or knowledge. They’re optimistic that a government bill will be introduced in the House of Commons as early as 2023 to permanently change what happens when a sexual assault case goes to court.

Victoria-based sexual assault survivor Kelly Favro won her case against her attacker, Kenneth Erickson, who was found guilty of sexual assault in December 2016. She didn’t know until four years later that a publication ban had been placed on her name. “That should have been a choice, it absolutely should have been a choice to put this on my name or not, and I wanted an informed choice,” Favro said. “There are really good reasons to have publication bans, but there are also reasons to not have it. I didn't do anything wrong. I wasn't the person that was convicted of sexual assault.”

Publication bans, which prevent anyone from identifying the subject of the ban, are not put on every sexual assault case automatically; they can be requested by the complainant, but in most cases, the Crown prosecutors make the request. Usually, this happens before the survivors themselves appear in court. Once a publication ban has been requested, the judge has no discretionary power—it must be applied, and the complainant might not even know it exists. The law does not require that the court or prosecutor inform a complainant that a ban is in effect.

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But a survivor, even if they’re not aware of the publication ban, can face serious consequences for violations. After a publication ban is in place the survivor cannot speak about their attack publicly using their own name—if they do, they can face up to two years in custody and up to a $5,000 fine. A Waterloo-based woman was fined $2,000 for breaching a publication ban after her ex-husband, who was convicted of sexually assaulting her, reported her to the police for sharing the results of their trial. She had shared court transcripts documenting the court’s decision with a small group of family and friends over email. The woman, referred to in court as C.L., appealed her case and the fine was overturned due to a legal technicality—not because of the counterintuitive nature of fining someone for talking about their own successful legal case.

Publication bans have also, in some cases, protected the identity of offenders. This was also the case for Favro, who noticed that her offender's name was missing from the court’s online database. Even though the ban was placed on Favro’s name only, it shielded her attacker's name from being published after he received a guilty verdict. It wasn’t until she went through a lengthy legal processto have the ban removed that his name became visible.

Cases like Favro’s have driven a movement to change legislation that’s been going on for two years. Survivors from all over Canada began going through the process of removing their publication bans after discovering they were placed on their names without consent. Some of these women went public after having their publication bans removed. This created a snowball effect; other survivors began looking into their own cases to see if bans had been placed on their names. Those survivors, including Favro, started contacting each other on social media.

The women decided to work together to bring awareness to the issue. They began emailing MPs, MPPs, MLAs, and senators. They were met with either no response or form emails for more than a year.

However, their luck appeared to shift in October, when a group of sexual assault survivors travelled to Ottawa to speak in front of the Standing Committee on Justice and Human Rights. Survivors in attendance spoke on their recommendations for a change in legislature.

Securing an invitation was not a simple task. Ontario-based sexual assault survivor Morrell Andrews, who was working with Favro, emailed 56 federal MPs asking for support but received only two responses. One of them was from Conservative MP Larry Brock, who represents Brantford-Branch in Parliament. On Sept. 16, Brock met with Andrews. “He invited me to testify about my experience, as a victim and as someone who had a publication ban on her name that was unwanted,” Andrews said.

Favro, who was also in attendance in Ottawa, began advocating in BC. She contacted MP Laurel Collins asking for help. Collins offered to sponsor Favro’s petition. Collins’s name is attached to the petition, reinforcing her support for the recommended changes to section 486.4 of the Criminal Code, which deals with publication bans. The petition went live on the House of Commons website Nov. 10.

Collins, a member of the NDP, had explored the option of a private member’s bill to change the legislation, but changed tack in November and pressured the Liberal government to change its own legislation instead.

“Government bills are always prioritized in terms of timing,” Collins said. “My intention is to do everything possible to push this forward and push on the government to make the changes. That would be the quickest, and, ideally, the easiest, way if they were willing to do it. But if not, I'm going to be pushing on all the other levers including a private member's bill and petitions.”

Collins is not alone in believing that changes are needed to support victims of sexual assault. She is joined by neighbouring NDP MP Randall Garrison (who represents Esquimalt, Saanich, and Sooke), who has been working alongside her. Collins also reports having broad support within her caucus as well as individual support from MPs across party lines.

In BC, the Ministry of Attorney General has also been made aware of the push for change in the federal legislature. “We recognize the issues around publication bans and the concerns expressed about how people feel they prevent them from speaking out about unjust things like sexual offenses and gender-based violence,” a ministry spokesperson told Capital Daily.

But he stressed that the publication bans still have a role to play in the justice system.  “We know publication bans can have an important function in protecting victims of crime and their family members. It is important that the Criminal Code strike the right balance in this regard.”

The petition sponsored by Collins closes on March 10, 2023. Collins will then bring it forward to the House of Commons, and hopes for a formal response from the government.