The publication ban that makes no sense

I had the pleasure of sitting down to speak with Steve Murphy of CTV Atlantic about the publication ban in a very high profile child pornography / cyberbullying case here in Halifax. (CTV Atlantic: Privacy lawyer weighs in on pub ban | CTV Atlantic News)

The case has become very well known and most people are aware of the name of the victim, but the mandatory publication ban has resulted in a significant chilling of discussion related to this very important issue.

The ban is a mandatory one; the Criminal Code is clear that a judge MUST order a ban on the publication of any information that would identify the victim.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

In an application made by the media to have the ban set aside, the judge made it abundantly clear in his decision turning down the application that his hands were tied.

In this case, the victim is no longer alive, having taken her own life as a result of a sexual assault, the distribution of the photo at the heart of the child pornography case, the subsequent bullying and slut shaming. The parents of the victim have been very vocal advocates in this area and need to continue to do so. But the telling of their daughter's story and the discussion that needs to take place all run the risk of violating the publication ban.

The publication ban, in this case, makes no sense and is chilling the discussion of a very important subject. Some have decided to ignore the ban and the Halifax Police today decided they would not pursue charges against a number of who have dared to mention the victim's name, but made it clear that they would investigate any further possible violations on a case-by-case basis. This is counter-productive. As the judge clearly stated in his decision, all of this can be solved by the Nova Scotia Director of Public Prosecutions issuing a statement that it would not be in the public interest to pursue charges in this case.

55. It is not for the court to purport to direct or even to advise or provide recommendations to the Director of Public Prosecutions. I will note however that it would be within the authority of the DPP to issue a direction to prosecutors in a specific case or in a certain classes of cases that it would not be in the public interest to prosecute. It would be within the authority of the Attorney General to issue a public direction to the DPP to that same effect.

The existence of the ban and police/prosecution discretion is having a chilling effect on discussion of this important issue. In my view, it is in the public interest that people be able to tell the whole story of the victim in this case.

If you agree, please feel free to share your opinion with the Director of Public Prosecutions:

Public Prosecution Service (Head Office)
Suite 1225, Maritime Centre
1505 Barrington Street
Halifax, Nova Scotia, B3J 3K5
Tel: (902) 424-8734
Fax: (902) 424-4484