Thank you, Madam Chair.
I'm going to speak on publication bans.
In 2021, sexual assault survivor C.L. was convicted of breaching her own publication ban. Her crime was texting the reasons for her abuser's conviction to her friends and family, a group of supporters. The trial judge described the assault as extremely serious and violent, and her children were in the home at the time it happened. The trial was long and difficult. She had a community of supporters—a network. Some of them were not in court the day the accused was convicted, so she sent them the reasons for judgment via Facebook Messenger. The accused learned of this and complained to the police.
C.L. was charged with violating the publication ban that had been put in place to protect her. The prosecutor reviewed the file and somehow determined it was in the public interest to prosecute her for this. They said they would seek jail if she was convicted. She took money from her savings account and hired a defence lawyer. Her lawyer explained that, if she pleaded guilty, she could avoid jail. Her lawyer would join the Crown in asking the judge to impose a $2,000 fine. Frightened and traumatized, she agreed. As a final insult, on the day she pleaded guilty to something that isn't actually a crime—I will come to that—the judge imposed a $600 victim fine surcharge, even though C.L. was the actual victim.
The law on publication bans is clear and settled. Texting a legal decision to a small group of supporters does not constitute intentional publication, broadcasting or transmission within the meaning of the Criminal Code. C.L. committed no crime, yet every justice system actor who touched the file failed her—the police, the Crown, her own lawyer and the judge.
I reached out to her after reading about her case in the news. With the help of my colleague Karen Symes, we successfully appealed the decision. C.L.'s conviction was quashed and her money, including the victim fine surcharge, was returned to her.
Her case made national news and galvanized a network of survivor advocates who were having difficulties of another kind with publication bans—getting them lifted. These brave women eventually formed the group that testified here, My Voice, My Choice. However, because of the media attention, survivors across the country started reaching out to me—since I happened to have my name in the paper—and my friend and colleague Megan Stephens, whom you met a couple of weeks ago.
In the intervening years, I have assisted many survivors in getting publication bans lifted and advised countless others. Today, I bring this practical experience to the committee, as well as almost three decades as a prosecutor, defence counsel, victims' rights advocate and survivor myself. I have seen the system deal with sexual assault cases from every side.
I share C.L.'s story with you because, in many ways, it was the genesis of these amendments. However, it's important to stress that her ban remains in place because she wants it. The principles underpinning these amendments must be knowledge and autonomy for complainants. These provisions were found constitutional in the Canadian Newspapers' case because of their laudatory purpose of encouraging reporting. It needs to be easy to have the ban imposed and easy to have it lifted. In all cases, there should be a meaningful duty to inform the complainant, so they can exercise their rights.
I welcome and support the amendments in Bill S-12, but I echo the comments of others to stress the need for properly funded counsel for the complainant. Most complainants don't even know there is a publication ban in their case and, I would venture to say, literally none are consulted before it's imposed. This is why, at earlier stages of drafting, together with a network of other lawyers—one of whom is here to testify later, Pam Hrick of LEAF—we are lobbying to impose a duty to inform the complainant of the existence of the publication ban.
A prosecutor cannot provide legal advice to a complainant. Every discussion a prosecutor has with the witness is subject to disclosure obligations. The provision as drafted can put the prosecutor in the position of harming the complainant by having to disclose new information they receive while explaining the publication ban. For example, if the complainant asks, “Can I speak to my counsellor?” or says, “I have told my counsellor the details of this assault”, that may then put an obligation on the prosecutor to disclose to defence something that they might or shouldn't already know, which is that there might be counselling records they could subpoena.