COURT FILE NO.: 15-SA5153 DATE: 20190530

BY COURT ORDER MADE UNDER S. 486.4(1) OF THE CRIMINAL CODE, INFORMATION THAT MAY IDENTIFY THE PERSON DESCRIBED IN THIS JUDGMENT AS THE COMPLAINANT MAY NOT BE PUBLISHED, BROADCAST, OR TRANSMITTED IN ANY MANNER.

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – T.S.H. Respondent

Anya Kortenaar, for the Applicant Elena Davies, for the Respondent

HEARD: May 27, 2019

ENFORSEMENT re publication ban

Aitken J.

Nature of the Proceedings

[1] Crown counsel, on behalf of the Complainant, C.G., applied for an order lifting the publication ban under s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46 that had been imposed for the benefit of C.G. in the incest proceedings dealt with in R. v. H. (T.S.), 2019 ONSC 306 and R. v. H. (T.S.), 2019 ONSC 2644. The other Complainant in these proceedings, H.B., does not consent to the publication ban for her benefit being lifted. As well, the Accused, T.S.H., opposed the lifting of the publication ban for fear that information about him when he was a youth would be made public contrary to s. 110(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1.

Open Court Principle vs. Mandatory Publication Ban

[2] In considering the Applicant’s request, the court must keep in mind the open court principle and the constitutional guarantee of freedom of the press under s. 2(b) of the Charter (R. v. Southam Inc. (1989), 47 C.C.C. (3d) 21 (Ont. C.A.)). That being said, under s. 486.4(2)(b), once a victim or the prosecutor in incest cases applies for a publication ban under s. 486.4 of the Criminal Code, the presiding judge must make an order that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. Such an application was made by Crown counsel for the benefit of both victims, C.G. and H.B., at the commencement of the incest trial against T.S.H. The publication ban under s. 486.4 was ordered at that time. The trial and subsequent sentencing hearing proceeded on the basis that such a publication ban was in effect. My Reasons for Judgment following trial and my Reasons for Judgment re Sentencing were drafted on the basis of that publication ban being in effect.

C.G.’s Current Wishes

[3] C.G. is now seeking to have lifted the publication ban that applies to information that could identify her as one of the victims in this case because she wants the CBC to publish her story. The goal is to bring out in the open how difficult it was for C.G. to report to the police the incest she suffered at the hands of her brother, and to encourage other women who have endured similar abuse to find the courage to come forward and confront their abusers. C.G. believes that, by publicizing her story, she will help others and will also help herself on the long road to healing.

[4] C.G. understands that the CBC will only publish her story if it can identify her and the fact that her abuser was her brother. She understands that the CBC will not embark on a human interest story like this if the identity of the person recounting her experiences has to be protected. In other words, for CBC’s own reasons, it would not be prepared to refer to C.G. as Jane Doe and change her voice or camouflage her appearance to hide her identify but still let her tell her story in the media.

[5] Crown counsel advised that the CBC and C.G. are prepared to have C.G.’s story publicized in such a way that no reference would be made to H.B. also being a victim; the focus of the story would be entirely on C.G.’s experiences. CBC and C.G. are also prepared not to identify the date of T.S.H.’s conviction or sentencing or the name of the judge who presided over the trial. CBC and C.G. are also prepared to tailor C.G.’s comments so as not to discuss any allegations against T.S.H. when he was a youth.

Jurisdiction

[6] There has been a material change in circumstances since the publication ban in this matter was made. The Crown and C.G. have both consented to the lifting of that portion of the publication ban relating to protecting C.G.’s identity. The publication ban in regard to information that could identify C.G. is therefore no longer mandatory. The court therefore has the power to revoke the publication ban as it relates to C.G. (See R. v. Adams, [1995] 4 S.C.R. 707, at para. 32).

[7] Although the trial judge is functus after a finding of guilt has been made and sentence imposed, any judge of the Superior Court of Justice can hear an application to lift a publication ban imposed at trial. (See R. v. Ireland (2005), 203 C.C.C. (3d) 443, at para. 19).

Analysis

[8] The court’s primary concern in deciding this application must be to reaffirm to victims of sexual offences that, if they choose to come forward, their identities will be protected if that is what they wish. It is only if this assurance is crystal clear that many victims of sexual violence will find the courage to report the crimes they have experienced. If a victim comes forward on this basis, it could be very damaging to the reputation of the criminal justice system, and therefore to the goal of having crime reported, if the protection promised the victim is watered down over time and information about the victim’s identity seeps out through the cracks.

[9] H.B. was a victim in these proceedings – one who, like C.G., sought and obtained a publication ban to protect her identity. She still wants the protection of that publication ban. She and C.G. are sisters and the offender is their brother. I am very concerned that lifting the publication ban vis-à-vis C.G., even with the imposition of limitations and restrictions on what could or could not be disclosed by C.G. in the report to be publicized by the CBC, would significantly increase the risk that H.B.’s identity as an incest victim would be discovered by anyone interested in doing a little research.

[10] There are a limited number of incest cases decided in Canada in any given year. Thus, anyone searching the existing data bases for such cases could easily discover R. v. T.S.H. The decisions rendered in this matter used the initials of the victims, the witnesses, and the offender and specified how they were all related. It would therefore be easy to link C.G., and then H.B., with the case against T.H.S and to realize who H.B. was. In writing my Reasons for Judgment and my Reasons for Judgment re Sentencing, I assumed that the publication ban would be in existence into the future. The decisions provide detailed information about H.B., C.G., and T.S.H. I may not have included that level of detail had there been any suggestion that one victim would be seeking to have the publication ban lifted against the wishes of the other victim. H.B.’s privacy interests are very much at stake here.

[11] In focusing on the interests of H.B., it is not my desire to stand in the way of C.G. doing what she feels she must do to further her own healing. She advises that telling her story is part of that healing process. I understand that. However, I see no reason why the CBC, or another media outlet, could not find a way to enable C.G. to tell her story in a way that does not divulge her actual identity. Interviews of that nature are not uncommon in televised media. The identities of those who may be in danger or who are otherwise vulnerable are often protected during the course of interviews by way of voice alteration, camera locations behind the interviewee, or the blurring of facial features. The same can be accomplished in print media through the use of fictitious names. The CBC may prefer to have C.G. identified to make the media report more powerful; however, that is simply its preference. It does have other options available if it wishes to publicize C.G.’s story.

Disposition

[12] For these reasons, I refuse the application by the Crown and C.G. to lift on a partial basis or modify the s. 486.4 publication ban that is in place in these proceedings.

Aitken J.

Released: May 30, 2019

COURT FILE NO.: 15-SA5153 DATE: 20190530

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – T.S.H. Accused endorsement re publication ban Aitken J.

Released: May 30, 2019