Jade Neilson, from Nanaimo, was helped through the process of lifting the publication ban on her sexual assault case by Favro. (Courtesy of Jade Neilson)

Jade Neilson, from Nanaimo, was helped through the process of lifting the publication ban on her sexual assault case by Favro. (Courtesy of Jade Neilson)

Vancouver Island women push to end court-ordered silence of sexual assault victims

Group wants victims to have a say on publication bans for sexual assault cases

WARNING: This article contains details of sexual assault that some may find disturbing or triggering.

A group of B.C. women is banding together to petition Parliament to change the rules on court-issued publication bans for sexual assault cases.

They say the current rules silence sexual assault survivors and leave them uninformed while protecting abusers.

Petition e-4192, sponsored by NDP Victoria MP Laurel Collins, calls on the federal government to implement a number of changes on how victims are kept informed of publication bans on their sexual assault cases, give victims a choice on whether a publication ban is implemented or not and help them lift those publication bans if they wish.

The petition was initiated by Kelly Favro, a 39-year-old Victoria mother who went through the unusual process of fighting to remove a publication from her name in June 2021. That struggle, which she described as “humiliating,” inspired her to try and help ensure other women don’t have to go through the same thing she did.

The problem

Favro was sexually assaulted by Kenneth Charles Erickson, who was sentenced to 18 months conditional release in December 2016. Erickson appealed the decision in 2017, a court process that got dragged out for three years into 2020.

In December of that year, Favro searched Erickson’s name using the provincial court services online (commonly referred to as CSO) database where criminal and traffic cases can be looked up online. Knowing Erickson had been convicted, she expected to find details about his case. But there were none. That’s because a publication ban had been put on Favro’s case without her knowing it.

“Because of this ban that was on my name – at the time, I didn’t know – he could go on dating sites, he could go on Tinder. And to anybody who looks him up, he’s gonna look like a safe person, because you punch in his name, and nothing comes up.”

Favro said CSO is a commonly used precaution for women who are about to meet someone in person to try and protect themselves. But thanks to the publication ban on her case, nobody could access that information.

So Favro went to the B.C. Supreme Court trying to get the ban lifted. She imagined the process would be simple but found it to be exactly the opposite, involving affidavits and months of arguing.

“I had a six-and-a-half-month battle, trying to get the right to say my name and begging the judge to say my name was humiliating. It’s my name, I shouldn’t have to fight that hard.”

Since then she’s strived to educate other women on the process, connecting with them via online survivors’ forums and other social media sites like Reddit.

One of those was Jade Neilson, a Nanaimo woman whose experience of the criminal justice system left her disillusioned and feeling failed by the system. She was groomed and sexually abused over a period of around a year by a man in his 20s who volunteered at a youth program Neilson attended back in 2009 when she was 14.

Neilson reported the abuse in March 2021. A couple of months later she was called by the Crown’s office and told a publication ban was on her case. Although initially, Neilson said she didn’t want a publication ban, she was convinced it was in her best interest but didn’t get any clarity on what she was allowed to discuss and with who.

“I was told in that initial phone call that it would be best if I didn’t speak to any of the other witnesses, which was something that I really struggled with because these are basically my family and all my childhood friends. I was kind of, I guess, excavating this stuff again, and I want to talk about it because it’s top of mind for me.”

Months passed with little guidance until a week before the trial when Neilson was told by the lawyer on her case that the evidence was unlikely to return a guilty verdict. Faced with the prospect of her friends and family being put on the stand for what may end up being a lost cause, Neilson decided against pursuing the case, instead obtaining a peace bond against the man – in effect a restraining order. But the publication ban was still in place, meaning she couldn’t discuss her experience.

“I said, ‘This is crazy, I’m in a worse position now than I was before I reported.’ The only real outcome was that (I was) not allowed to talk about my experience, which just seems crazy to me.”

The same day the peace bond was put in place, Neilson got in contact with Favro, who showed her how to fill out an affidavit and submit it to try and overturn the publication ban on her case. Initially, Neilson’s application was rejected in provincial court due to functus officio – a principle in law that says a judge who makes a decision can’t revisit that decision. Neilson then took her appeal back to the judge who granted the peace bond, where the publication ban was ultimately lifted.

“When I left the criminal justice system, I just felt completely shattered beyond recognition. I didn’t feel like myself. The big thing that I felt was, if anybody asks me, I would tell them, ‘Don’t do it, it’s not worth it.’ I still feel that way – I wouldn’t ever recommend to a victim of sexual assault to pursue a criminal case. It’s not that I would say like, ‘Oh, just be quiet about it.’ I might say go civil or look for support or advocacy outside of the system. But I just don’t think the system is well enough equipped right now to help these people or to have real accountability.”

Since then she’s turned to helping with the petition along with Favro and several other women and advocating for survivors.

The petition

Collins, herself a survivor of sexual violence, said she was honoured to sponsor the petition after speaking to Favro.

“It seems like quite an easy legislative fix,” said Collins. “I will definitely be pushing the government to make these changes because that would bring them forward in the most speedy manner and actually get support for the people who need it now. But given that the government does not always do the right thing we’re going to be exploring all of the different options, including a private member’s bill.”

Collins said she made some headway with her NDP colleagues but hadn’t received much support from Liberal MPs who she hoped would introduce it as a bill. A private member’s bill takes far longer to pass.

All MPs – except those in cabinet – are entered into a lottery that determines the order of who gets to present a private member’s bill in front of Parliament, all the way from 1 to 297. Collins is 78th on the list. Most recently, on Nov. 23, Conservative MP Dan Mazier presented his private member’s bill for the first time to Parliament. Mazier is 51st on the lottery list.

The approval process for private member’s bills moves even more slowly. Since the federal election in September 2021, six private member’s bills have received ascension out of the House of Commons. Since Justin Trudeau was elected prime minister in 2015, 16 private member’s bills have received ascension.

“I think it’s just so critical that we address this issue so that survivors have the choice. And I do want to say that publication bans can be really beneficial, and for people who choose them, they can be really, really important tools. The problem is when survivors are having that choice made for them,” said Collins.

Favro was part of a group led by Morrell Andrews that presented to the federal Standing Committee on Justice and Human Rights in October.

“It was the first time that I really felt that parliamentarians were hearing the things that we had to say… I felt a lot of responsibility to not only share my experience having gone through the legal system, and having had an unwanted publication ban put on my identity, but I felt very accountable to the other women like Kelly, Jade and others who I’ve met who have shared similar stories with me,” said Andrews.

Andrews was sexually assaulted in 2013 when she was 18 by a driving instructor in Ontario. She reported in June 2020, and during the court process she was shocked to find her case was under a publication ban without her having been warned ahead of time. She successfully lifted the ban in May 2021. Since then she’s been vocal about her experience, helping other women including Favro navigate lifting publication bans.

Currently, the petition has 644 signatures, more than the 500 minimum needed to require a response from the federal government.

“I want thousands of people because thousands are going to get people’s attention. There are 38 million of us in Canada, I’m sure that we can do better than 500,” said Favro, adding the issue likely impacts thousands of people who don’t even realize it.

The response

Like Collins, Neilson has been reaching out to government officials at the provincial and federal level to try and drum up support for the petition, but so far has received little response.

“I’m so concerned for people who don’t have the skills or support that some of the people, like Kelly and myself and some of the other women who have been pushing for change,” said Neilson. “Going through this system, it’s like when you’re a kid, and you start to realize that your parents have flaws. And you’re like, ‘Oh I thought you knew everything.’ That’s how I’m feeling about the government.”

Andrews on the other hand has had positive feedback from Liberal MPs and is optimistic that a government-introduced bill will come before the House of Commons next spring.

Dan McLaughlin, a spokesperson for BC Prosecution Service, said prosecutors try to meet with any complainants early in the criminal process to explain to them their options, but sometimes this can’t happen before the first court date. In those situations, a publication ban can be added before the prosecutor has had a chance to discuss it with the complainant to prevent information going public that may identify the victim.

“In our experience, prosecutors are diligent in notifying complainants of the availability of the bans or the existence and effects of these types of publication bans if put in place in advance of consultation. Prosecutors are sensitive to the wishes of the complainants should they not seek to have a publication ban on their identity or wish to have an existing ban removed,” McLaughlin said in an email.

McLaughlin added that in BCPS’s experience, “the majority of complainants/victims welcome the protection of privacy afforded by the publication bans that are available.” He added the publication bans do not prevent the complainant from speaking about their experience, and only serve to protect their identity.

“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 offences and gender-based violence,” according to a spokesperson for the Ministry of Attorney General. “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 and we look forward to hearing the outcome of the standing committee’s work.”

Chantalle Aubertin, press secretary to Justice Minister David Lametti, said the federal government has 45 days to table their response.

“Gender-based violence and intimate partner violence have no place in Canada and our government has made it a priority to end it in all its forms,” Aubertin wrote in an email. “We thank MP Laurel Collins for initiating this interesting petition and look forward to considering her suggestions.”

Favro, Neilson and Andrews acknowledged publication bans can be important, but victims should be consulted.

Neilson said some of the backlash she and activists more broadly have received, with fears of false accusations and reputational damage for those accused of abuse, is illogical when considering most other crimes don’t have publication bans.

“I was making close to six figures when I reported, and (after) I didn’t work for a year. It’s a very, very high price to pay. It feels like people want you to prove that there aren’t false allegations, or that people wouldn’t make them and it just feels insane that that’s the case.”

Favro said society has shifted where issues like victim blaming or gaslighting are less common than before.

“Women don’t need protection, we need advocacy and support.”

READ MORE: Victoria sexual assault survivor achieves rare overturning of publication ban


@moreton_bailey
bailey.moreton@goldstreamgazette.com

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BC Supreme CourtCrimeCriminal Justicesexual assaultSookeWest Shore

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