Women oppose publication bans in Nunavut sexual assault case

terzetto women who feature reported allegations of historical sexual assault to the RCMP say they need to evidence their stories publically, despite several publication bans in the case.

They hope to use a 2023 amendment to the Criminal Code that makes it easier for complainants to waive a publication ban on their names and anything that would identify them.

"I am not ashamed for what someone did to me," said one woman. "It's not mine to carry, but theirs." 

"I am not ashamed of my story or what happened to me," added another. "I stand in my truth and I know many others who stand with me."

"None of us were consulted and none of us agree with it," she added.

Publication bans are mandatory in cases involving youth or charges of sexual assault, often without the knowledge of a complainant, who can face charges for breaking them.

But under Bill S-12, the amendment to the Criminal Code, prosecutors are required to inform the subject of a publication ban that it exists, and that, in some cases, they have a right to waive it. 

The new law also simplifies the process to remove or modify the ban. The prosecutor must submit an application to the court, which should do it without a hearing — unless another person's privacy interests will be impacted. The accused is not allowed to make submissions.

The changes are a result of advocacy by Kelly Favro, Morrell Andrews and other members of the group, My Voice, My Choice, who all fought to have publication bans removed in their sexual assault cases.  

"It should be our choice to have your identity protected or it should be your choice to share your story," Favro said in a recent interview. She's now co-founder of an advocacy group called Beyond the Verdict.

Andrews said she got involved because she felt it was important to talk about how the justice system treats people who come forward to report sexual offenses.

"There's now an additional nuance built into the law that we're going to make sure that victims are not going to be criminalized for publicly speaking about their own experience."

The amendment was used in the high-profile Jacob Hoggard trial after he was found guilty of sexual assault causing bodily harm in 2022. 

Previously referred to as J.B. Or the “Ottawa woman,” Jessica Baker revealed her identity as the survivor of a 2016 assault by Hoggard in a Toronto hotel room.

In this case, Nunavut RCMP charged the accused with multiple counts of sexual assault, following an investigation into allegations over the span of two decades.

Days after the police put out a news release about the arrest and charges, it was removed from the website.

There are actually three publication bans in effect, said Alessia Bongiovanni, a spokesperson for the Public Prosecution Service of Canada (PPSC).

The charges involving the accused when he was a youth are under a ban through the Youth Criminal Justice Act (YCJA), which prohibits the publication of any information that would identify anyone ages 12 to 17 who is involved in the criminal justice system.

The complainants are also covered under the standard section 486 Criminal Code publication ban for sexual assault cases.

Under the 2023 changes, the witness or complainant must be told as soon as possible about the existence of the publication ban and their right to apply to revoke or modify it.

Bongiovanni noted that even if the complainants want their names revealed, there is still a legal requirement under the YCJA that no information can be published that could lead to the identification of the accused.

The third ban in place for all charges is under section 517 of the Criminal Code, which Bongiovanni says applies to all proceedings, including bail hearings and preliminary inquiries. Nothing can be published until after a trial is held to avoid tainting a potential jury pool.

Meanwhile, Bongiovanni confirms a Crown attorney has not yet been assigned to this case because they are looking for someone who does not have a conflict of interest in Nunavut. 

"The work to secure the prosecutor is ongoing but is anticipated to be finalized this week," she said, adding either the Crown or the defence could apply for a change of venue, but because Nunavut is a single jurisdiction, it would be another community within the territory.

The complainants in this case are being supported by the Amautiit Nunavut Inuit Women's Association.

Many of them suppressed their pain for years "and they've been living in the shadow of this situation for so long that to continue to allow their names not being public is another way of silencing them," said Amautiit president Tara Qunngaataq Tootoo Fotheringham.

"They're not being heard ... They are not being validated."

Tootoo Fotheringham says her group is concerned about a growing perception in the community that the justice system is "two-tiered" and not fully transparent.

By limiting public knowledge of cases involving serious allegations, she says it puts more burden on the survivors who are "already navigating risk and vulnerability."

Amautiit is helping the complainants figure out how to have the publication bans on their identities lifted, getting legal advice on whether to fight the ban on the accused's name on the adult charges and looking into victim services support through the RCMP and Nunavut Department of Justice.

"This is part of their healing journey," Tootoo Fotheringham said. "We're going to stand with them through this process and we're going to learn what the process is with them."

Meanwhile, despite the changes to the Criminal Code, the judge can still decide to keep publication bans in place.

"There are still a lot of decisions that can be sort of trumped by the courts," Favro said. 

"If the courts feel as though the identity of another victim complainant could be compromised or, in this case, the identity of a perpetrator could be compromised, the courts can slap that gag order on. And that's that."

Whatever they decide, Andrews applauds the courage of the complainants. 

"If speaking out publicly and being loud and demanding change is what feels right, then all the power to them," she said, pointing to a precedent-setting case in Ontario in 2024, R. V. M.E. 

"For those who may wish to retain their publication bans, I think that's also the right choice," she said. "What's important is that people have the choice to make the decision that's right for them."

Andrews notes that the decision whether or not to revoke a publication ban is not a one-time decision.

"You might go through the court process and want to retain your publication ban, and then maybe 10 years later you say, 'You know what, actually I'm ready to talk about this' because healing looks different for everyone," she said.

"Everyone can knock on the Crown attorney's door based on this law and say, 'OK, I'm ready. I want it removed.'"

Support is available for anyone who has been sexually assaulted. You can access crisis lines and local support services through this Government of Canada website or the Ending Violence Association of Canada database. ​​If you're in immediate danger or fear for your safety or that of others around you, please call 911. 

National reporter

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