Former MLA David Laxton leaves the court house earlier this week. (Chris Windeyer/Yukon News)

Waiving publication bans in sexual assault trials rare but not unheard of

Michelle Stimson chose not to keep her identity secret

Jackie Hong

News Reporter

Michelle Stimson’s choice to not have a publication ban put on her name is a rare move when it comes to sexual assault court proceedings, legal experts say.

Stimson is the complainant in the ongoing sexual assault case against former Yukon Speaker and Porter Creek Centre MLA David Laxton. The two-day trial concluded this week.

Under Canada’s Criminal Code, a presiding judge in a case involving an alleged sexual offence has the authority to ban the media, and anyone else, from broadcasting or publishing any details that may identify the complainant. Typically, the Crown lawyer on the case will bring forward a motion at the accused’s first court appearance requesting a publication ban on the complainant’s name, which the judge then approves.

However, for the Laxton case, Crown attorney Amy Porteous said Stimson waived that right, something Porteous said she’s only seen happen a “handful” of times before in her eight years of practicing criminal law.

“In my experience, it’s quite rare that that happens…. I can only speak to what I’ve seen, and that’s that it’s pretty rare,” she told the News in a phone interview Aug. 10.

In sexual assault cases, the Crown generally asks for a publication ban by default, Porteous said, and would only refrain from doing so if the complainant shows they “fully understand the implications” of not having one put in place.

“We would generally err on the side of caution and ask for it early on rather than risk the name getting out if they didn’t want (it) to,” Porteous said, noting that publication bans can always later be lifted on request of the complainant.

Stimson did not respond to a request for comment for this story.

Yukon Court Watch volunteer coordinator Reem Girgrah said that in her time with the project, she can’t recall a sexual assault case where a publication ban wasn’t put in place. Court Watch has volunteers attend court cases involving sexual violence, violence against women and spousal abuse to note things like the language used and atmosphere of the courtroom.

“It’s pretty rare to not see a publication ban,” Girgrah said of Court Watch’s observers’ notes, adding that privacy concerns usually play a big role in why someone would want a publication ban put in place.

“A lot of times when you’re in court, there’s a lot of private information that comes out and becomes very public…. And being in the Yukon, it’s a very small community, it’s very easy to make those links,” Girgrah said. “If in court you’re going to be asked very personal, in-depth questions and questions that make people really uncomfortable with having to speak about, you may not want your name attached to that in any sort of public file.”

The shame, victim-blaming and myths associated with people who experience sexual assault may also contribute to why complainants want to keep their name out of the public sphere, she added.

There has been at least one other recent high-profile sexual assault case in Canada where the complainant did not want a publication ban in place.

In a trial in Toronto in February 2016, complainant Mandi Gray also waived a publication ban on her name, instead sending out press releases and holding news conferences to share her experience with the court system and advocating for people who have experienced sexual assault. The accused, Mustafa Ururyar, was convicted in July 2016 but the ruling was later overturned and a new trial has been ordered.

Contact Jackie Hong at jackie.hong@yukon-news.com

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