When Kelly Favro searched B.C.’s online court registry for the name of the man charged with sexually assaulting her, she couldn’t find his name — or any information on the case.
“I thought maybe I couldn’t see the information because the trial was going on. Then I thought maybe I couldn’t see the information because we were waiting for the judgment or waiting for sentencing,” said the 39-year-old provincial government employee.
But four years after her assailant was convicted and sentenced for sexual assaulting Favro, his name still did not appear on the online court registry. When Favro typed in her file number, the case came up as “limited access.”
A frustrated Favro emailed the registry to find out why there was no online record of his conviction and learned that his name was redacted because it could identify her.
Without her knowledge, a publication ban had been placed on her name to protect her identity as a victim of sexual assault. The order under section 486.4 of the Criminal Code prohibited the publication, broadcast or transmission of any information that could identify her.
Favro immediately asked the registry to remove the ban on her name.
“He’s a convicted sex offender. He should be on the list,” she complained to registry staff.
Favro was also concerned that the publication ban meant she would be breaking the law if she shared her story on social media or through emails and texts.
The publication ban meant to protect her from further harm had effectively silenced her.
“My issue was I wasn’t asked. I had consent taken away from me and I lost my voice,” Favro said.
That was the beginning of her fight to be free to speak her truth, a fight that has taken her and other sexual assault survivors to the House of Commons and the Senate and changed the legislation governing publication bans.
Favro wanted to be able to share her story. She wanted other women to know what had happened to her. It was important to her that the identity of the accused was made public, too.
“More and more women are using CSO — court services online — as a tool to check to see if the person is violent or has been charged with sexual offences. If someone’s name pops up with a speeding ticket, you’re not going to say you’re not going out with this guy. But if you see a sexual assault charge, you are running in the opposite direction,” she said.
A lack of information
She started digging into the matter but couldn’t find any information about publication bans or how to remove them on any government website. She went back to the court registry to ask for help and learned she could make an application to appear before a judge. A lawyer helped her write an affidavit and in June 2021, Favro represented herself at a hearing in B.C. Supreme Court, asking to have the publication ban on her name lifted.
During the hearing, which was by telephone because of the pandemic, Favro told Justice Geoff Gaul that she had never asked for a publication ban on her name and had not consented to the ban.
“The most demeaning thing that happened was Justice Gaul asked [the accused] what he thought of this. As an accused, he had standing,” Favro said.
Her assailant wanted the publication ban to remain in place, telling Gaul he had been harassed by people who knew about the sexual assault conviction. But the judge was not persuaded.
“When a victim of a sexual assault comes before the court, as Ms. Favro has, and asks to have a publication ban lifted so that they can openly discuss and publish the details of the offence, including identifying themselves as the victim, the request ought to be respected and granted unless there is a strong and articulable reason why the ban should remain in place,” said Gaul, who made an order for the ban to be vacated.
Favro immediately started sharing her story on Reddit, Twitter and Instagram. In the weeks and months that followed, she started connecting with women across Canada who were also fighting to lift the publication bans on their name.
Morrell Andrews, a 29-year-old federal government employee who lives in Vancouver, was one of those women.
Andrews had been sexually assaulted by a 55-year-old driving instructor when she was 18. She reported the sexual assault in 2020 and at her assailant’s sentencing hearing in April 2021, she gave a 15-minute victim impact statement that she was proud of and wanted to share on Instagram with family and friends.
To her dismay, the judge asked the Crown during the video proceeding to confirm there was a publication ban.
Andrews said her reaction was “What the heck. This is something I don’t want.”
Over the break, she emailed victim services, asking them to tell the Crown to remove the ban. But the Crown responded saying that they didn’t know how to remove it. When the hearing ended, Andrews unmuted herself and asked the judge to remove the ban. The judge said there was nothing she could do because the sentencing was over.
“I spiralled. I actually think the month and a half I had to live under the publication ban was worse than going to court and not knowing what the outcome of my case would be,” Andrews said. “No one could tell me anything and I was left alone in the system. I felt so trapped. I was living in despair for weeks.”
Woman fined for sharing story
An angry Andrews decided to go public and tell her story to the Toronto Star. The newspaper had reported on the case of a woman in Kitchener-Waterloo who had been convicted of violating a publication ban issued in a sexual assault case in which she was the victim.
After the woman’s ex-husband was convicted of sexually assaulting her, she ordered a transcript of the judge’s reasons and emailed it to a group of family and friends. Her ex-husband notified the police and the woman was charged with violating a court order. She pleaded guilty and was ordered to pay a fine of $2,000 and a $600 victim surcharge. (The fine was later overturned.)
The Crown agreed to help Andrews after the article about her case was published. The application was made in Ontario’s Superior Court of Justice and when the ban was lifted on May 14, 2021, Andrews took to Twitter. Her posts were retweeted thousands of times. Victims messaged her.
“Kelly was one of those people,” Andrews said.
They two women connected and kept in touch. They emailed members of Parliament about the need to reform sections of the Criminal Code dealing with publication bans.
Finally, in September 2022, Andrews received a reply from Conservative MP Larry Brock, a former Crown attorney and member of the justice committee. Brock told Andrews the committee was doing a study into government obligations to victims of crime. He wanted her to appear as a witness and testify before the committee.
Andrews agreed and asked Favro and other women she’d been in contact with if they wanted to collaborate on recommendations. When she appeared before the committee on Oct. 5, 2022, Favro and another sexual assault survivor, Brandy Mullens, were by her side, supporting her.
In December, the justice committee published its report, calling for changes to the rules governing publication bans. Bill S-12 was tabled in the Senate in April 2023, but needed major amendments, Andrews said.
“We all got started on how it should be changed and improved,” said Andrews, who appeared before the Senate committee on legal and constitutional affairs in June and the justice committee in October.
‘Everything we didn’t have’
On Oct. 26, Bill S-12 received royal assent and passed into law.
Judges are now required to ask victims or witnesses if they want to have their identity protected by a publication ban.
When the Crown applies for a publication ban, the judge must confirm that this is what the victim or witness wants. Prosecutors are required to provide those protected by the ban with information on how to apply to have it revoked or modified.
The reforms clarify the process for lifting or modifying a publication ban. The legislation also makes clear that victims who choose to keep the publication ban in place can share their personal information in certain circumstances such as private conversations or support group settings.
“Knowing people will not face the same pain, delays and indignities we had to face has made all the struggles, all the tears, all the stress worth it,” Andrews said. “The whole section of the code has been transformed. And our stories are written in those words and in our pain and persistence.”
More than anything, the law gives victims, lawyers and judges clarity that victims are allowed to share their own information in any form and for any purpose, said Andrews.
“So we are not going to see victims who are being charged with a crime for sharing their own information to their supporters over email. We’re not going to see victims who are confused about whether or not they can tell their therapist or a trusted person when they’re trying to seek support,” she said.
“That is huge. That is everything we didn’t have.”
