By SAHAR FATIMA
Koopmans, who at the time worked for the Kamloops Daily News, circulation 12,000, said he was frustrated by the Crown’s attempts to impose a publication ban after the lawyer for the defence made comments about authorities pestering his client for information in jail.
He stood up, approached the judge, introduced himself and said he opposed the ban, Koopmans told a recent Ryerson University conference on press freedom.
“The entire courtroom went quiet,” said Koopmans, who used the precedent of Dagenais v. Canadian Broadcasting Corp. and other similar cases to insist that the ban should not be imposed. “But the judge listened.”
After listening to Koopmans’ arguments for more than 20 minutes, the judge dismissed the crown’s request for a publication ban.
“It was a really defining moment for me when I realized that I could do something,” Koopmans said during a presentation over Skype. “I didn’t need to just sit there because I work for a small newspaper and we didn’t have the resources to call up a lawyer.”
The 1994 Dagenais case involved four members of a Catholic order who were charged with physically and sexually abusing young boys in Ontario. They applied for a publication ban to prevent the CBC from broadcasting The Boys of St-Vincent – a fictional television mini-series about sexual and physical abuse at a Catholic orphanage – anywhere in Canada until the trials were over.
A Superior Court judge granted the injunction, and also prohibited the media from publishing anything related to the fact that such an application had been made.
The Ontario Court of Appeal, however, subsequently overruled the decision, and instead restricted the CBC from broadcasting the program only in Ontario and Montreal until the end of the trials. It also overruled the ban on publishing details relating to the application for a ban in the first place, stating that the ban’s goal of ensuring a fair trial for the accused did not outweigh the interests of the public in knowing about the proceedings and in bringing the issue of child sexual abuse to the forefront.
As Koopmans discovered, the ruling set a strong precedent and proved to be a useful tool for journalists fighting against publication bans.
Issues surrounding publication bans can create problems for reporters in other areas of the law as well, the students, media lawyers, journalists and scholars attending the conference were told. Ryerson journalism professor Lisa Taylor said journalists operate in a grey zone when it comes to sexual assault complainants who themselves choose to breach publication bans on their identity.
Taylor said the Criminal Code of Canada states that once a ban is in place, every person who fails to comply with the ban can be charged. She said this includes victims who create a Facebook page or a blog about their experience in a way that identifies them, and can – in theory – apply to complainants who choose to be identified by the media.
Taylor mentioned a story in the Toronto Star about an elderly woman who was raped in a nursing home. The woman was not in a condition to give consent to the publication of her identity so the Star spoke to her guardians.
“They (the guardians) were solidly in favour of identifying her, so identify her is what the Star did,” Taylor said. She said she can surmise that the Star did not go to court to try to overturn the ban.
“No one is going to win any public support if they try to prosecute a sexual assault complainant for naming herself,” she said. “These cases, for the most part, we haven’t seen any charges in.”
Nevertheless, Taylor said there are victims “who look at (the legislation), know that they will be breaching a ban and decide that they don’t want to take the chance.”
The publication ban can be overturned by sexual assault complainants willing to go through a court process with the help of a Crown prosecutor or by hiring a lawyer. Taylor pointed out, however, that most complaints are underprivileged women who work in the sex trade, or immigrant or disabled women for whom “that’s not a reasonable recourse.”
“Many people don’t have the energy and just don’t want to figure out how the heck to overturn that ban,” she said.
Taylor also warned that the judicial system can give misleading information about bans related to reporting on sexual assault complaints.
A document on the Department of Justice’s website, for instance, states that it “is important for victims and witnesses to realize that if a judge makes a publication ban, they will not be permitted to discuss the case with any reporter or communicate with the media through any other means.”
Taylor said that’s just not true. While the identities of complainants cannot be published, there is no law preventing them from speaking to the press about their experiences, she said.
“(But) as long as sexual assault complainants read this (misleading information on the website), it’s very easy for them to conclude that they don’t have a voice.”