Court ban means mom can’t share daughter’s story

She’s challenging ruling after speaking about teen’s death in high-profile case for years

Her daughter’s story is known around the world.

You’d recognize her name if it could be printed.

The circumstances of the teen’s death led to legal reform and social change, and her name titles an active non-profit organization working with schools, students and teachers to prevent a similar tragedy from happening again.

But — after years of impassioned advocacy — the teen’s mother can no longer share her daughter’s story and continue her legacy.

All because of a mandatory, inflexible and permanent publication ban placed on her daughter’s identity in May 2021, ahead of a criminal trial for a man accused of victimizing her daughter.

“Is my daughter’s pain being ignored?

Is her history being erased? Will all the good that has come from this tragedy become irrelevant?” the woman wrote in an emotional letter to the premier of her province this summer. “Will (her story) be forgotten?”

The publication ban is automatically applied to victims in child pornography criminal cases. And unlike most other publication bans, there is no way to have it lifted even in exceptional circumstances.

The woman is now challenging the constitutionality of the publication ban, outlined section 486.4(3) of the Criminal Code, arguing that it infringes on her right to free expression.

In her court application, she says she does not believe she can still do media interviews or even speak publicly about the case or her daughter’s story.

“Is my daughter’s pain being ignored? Is her history being erased?”

VICTIM’S MOM, IN A LETTER TO HER PROVINCE’S PREMIER

She fears information about her daughter’s story will have to be taken offline, despite her fight to keep it available as an educational resource.

And though her public advocacy has been part of her healing process and allowed her to connect with and support other parents and teens, the publication ban puts all of that in jeopardy.

“A judge ‘has to impose the ban even if no one asks for it, no one wants it, no one thinks it makes any sense at all, and it will have no real effect.’ It cannot be revoked or varied on application and continues beyond the death of the protected person and the end of legal proceedings,” her application argues, quoting from a decision in another case. The mother’s application notes the Crown did not seek the ban and only informed her of it so that she would not be found in violation. (The woman and her lawyers did not respond to a Star reporter’s requests for comment for this story.)

It’s an example of a publication ban working against the purpose it was designed for — instead of preventing further harm coming to highly vulnerable victims and encouraging other victims to come forward, it is causing distress and placing victims in a position where they’re caught between seeking justice in court or advocating publicly for change.

“By leaving absolutely no room for discretion, it sweeps up cases like this where it’s an absolutely absurd result,” said media lawyer Justin Safayeni, who is not involved in the case.

“However laudable Parliament’s intention may have been at the time to try and provide ironclad protection to people who have been wrapped up in this kind of horrific offence, it seems to me they have gone beyond what was required with the consequence that victims who want to be able to talk about it, or families who want to talk about it are effectively muzzled from doing so with no recourse other than to challenge the constitutionality of the law itself.”

A similar court application challenging the ban’s constitutionality has also been filed by media outlets, including the Toronto Star. That application argues that the most similar publication bans are in the Youth Criminal Justice Act, but even the strict provisions of that law can be lifted by a youth with parental consent, or their own consent once they are an adult.

The federal minister of justice declined to comment because the case is “actively before the courts.” Questions about the case to her province’s minister of justice were referred to the province’s prosecution service which also declined to comment because the case is before the courts.

This particular case is complicated by how widely reported the teen’s identity has been, both in Canada and internationally. Even naming the accused man could lead to the identification of the mother and her daughter. Then there is the question of what happens to Wikipedia articles and news stories initially published before the publication ban was imposed that may now be knowingly or unknowingly in violation.

Safayeni said there is not a clear legal answer — it is possible a court could view those stories as being in violation of the publication ban and want them taken down — but, practically speaking, such an effort is almost impossible, particularly for news outlets and websites outside Canada. It is also unclear why — given the mandatory nature of the publication ban — it was not imposed several years ago, when the criminal charges were first laid.

It’s not the first time the inflexibility of this publication ban has been criticized. The same situation arose in Nova Scotia in 2011 after 15-year-old Rehtaeh Parsons attempted suicide. Parsons had faced relentless bullying, including online and at school, after a boy took and shared an explicit photo of her. The teen was in coma for two years before she was taken off life support. Her case made headlines across the country as her family called for criminal charges to be laid and advocated for changes to address cyberbullying that ultimately contributed to the introduction of a new criminal offence banning the sharing of intimate images without consent.

But when child pornography charges were laid against two boys in 2013, a publication ban was automatically imposed on her identity — effectively silencing Parsons’ family and supporters and prompting widespread outrage, often shared with the hashtag #YouKnowHerName. Parsons’ family and some media outlets defied the ban entirely.

“We were devastated when it happened,” said Parsons’ father Glenn Canning in an interview. The publication ban “didn’t protect her, it erased her.”

The story disappeared from the news, interview requests stopped and a school cancelled a scheduled talk, he said.

Parsons’ parents wrote directly to Nova Scotia’s Minister of Justice, pleading for an exception.

A court application was unsuccessful, with the judge concluding he had no legal authority to lift the publication ban. The judge, however, suggested an alternative: that the attorney general issue a rare directive that it would not be in the public interest to prosecute any breaches of the ban.

Six months later, after initially refusing, Nova Scotia’s attorney general issued that directive. Breaches of the publication ban would only be prosecuted if Parsons’ name was used in a derogatory way. The directive noted it was “important for the public to discuss issues in society that affect teens.”

This directive is the reason the Star and other media can continue to report on Parsons’ case; news outlets could otherwise face prosecution.

To see the same situation arise again, several years later, is “heartbreaking,” Canning said. He said the law should have already been changed to allow exceptions at the request of the victim or the victims’ family, if they are deceased.

“It just put a mountain of hurt, unintentionally I’m sure, but a mountain of hurt on top of us,” he said. He wonders what would have happened if charges had been laid immediately and his daughter’s name had never been allowed to become public in the first place.

“Rehtaeh would have been forgotten. She would have been protected by the courts until she was erased and that’s just not OK,” he said. “For us, it was insulting actually, they came out to protect her long after we were pleading with them to do something to protect her.”

Like Parsons’ parents, the mother in the latest case made a direct plea to her province’s premier and attorney general but, according to her application for a constitutional challenge, she received no direct response.

A group of media outlets concerned about the publication ban, including the Toronto Star, also wrote to the attorney general, including the mother’s letter. In September, the attorney general responded, declining to follow the Nova Scotia approach. In the letter, he wrote that his power to direct the province’s prosecution service must only be used “sparingly” so as not to compromise its independence from government.

“It would not be appropriate ... to attempt to grant an exemption in advance from prosecution for breaches of a mandatory publication ban order,” the letter stated. “The difficulty lies in anticipating the range of ways that a court-ordered publication ban might be breached. No matter how carefully tailored a possible exemption might be, some allegedly ‘good faith’ breaches would still potentially run afoul of it.”

The letter states that police can refer alleged publication ban breaches to Crown prosecutors, and that the Crown would be best placed to consider whether it is in the public interest to lay charges and prosecute on a case-by-case basis.

In her letter, the mother said she understands the publication ban exists to protect victims from further victimization. But, she wrote, there can be no further harm to her daughter that can be prevented with a publication ban — there is only punishment through the silencing of both their voices despite evidence that her daughter would want her story to be told, she said.

“The consequences of breaking this publication ban is making it difficult and almost impossible to continue to educate/advocate to others about what happened to (my daughter).” A hearing has been set for next month.