This Canadian mother has talked about her daughter’s death for years. A new posting ban means the story can no longer be shared.

The story of his daughter is known all over the world.

I would recognize his name if it could be printed.

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

But, after years of passionate advocacy, the teenager’s mother can no longer share her daughter’s story and carry on her legacy.

All due to a mandatory, inflexible and permanent posting ban imposed on his daughter’s identity in May 2021, ahead of a criminal trial for a man accused of victimizing his daughter.

“Is my daughter’s pain being ignored? Is your history being erased? Will all the good that has come out of this tragedy become irrelevant? “The woman wrote in an emotional letter to the prime minister of her province this summer.” Will (her story) be forgotten? “

The posting ban automatically applies to victims of criminal child pornography cases. And unlike most other posting bans, there is no way it will be lifted even in exceptional circumstances.

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

In her court request, she says she doesn’t think she can still do media interviews or even speak publicly about her daughter’s case or story. She fears that information about her daughter’s story will have to be turned off, despite her struggle to keep it available as an educational resource.

And while her public advocacy has been part of her healing process and allowed her to connect with and support other parents and teens, the posting 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 and it will have no real effect.” It cannot be revoked or varied in the request and continues beyond the death of the protected person and the end of the judicial processes ”, argues his request, citing a decision in another case. The mother’s request indicates that the Crown did not request the prohibition and only informed her of it so that she would not be found in violation. (The woman and her attorneys did not respond to a Star reporter’s requests for comment for this story.)

It is an example of a posting ban that goes against its intended purpose: instead of preventing highly vulnerable victims from further harm and encouraging other victims to come forward, it is causing distress and placing victims in a position. where they are caught between seeking justice in court or publicly advocating for change.

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

“As laudable as the intention of Parliament at the time was to try to provide fierce protection to people who have been involved in this kind of horrible offense, it seems to me that they have gone beyond what was required with the The consequence is that the victims who want to be able to talk about it, or the families who want to talk about it, are effectively gagged so that they do not do so with no other recourse than to challenge the constitutionality of the law itself. “

The media, including the Toronto Star, have also filed a similar court request challenging the constitutionality of the ban. That request argues that the most similar posting bans are found in the Juvenile Criminal Justice Act, but even the strict provisions of that law can be overridden by a young person with parental consent or by his own consent once he is an adult. .

The federal justice minister declined to comment because the case is “actively before the courts.” Questions about the case to the minister of justice of his province were referred to the provincial prosecutor’s office, which also declined to comment because the case is before the courts.

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

Safayeni said there is no clear legal answer – it is possible that a court could consider those stories a violation of the publication ban and want them removed – but, practically speaking, such an effort is nearly impossible, particularly for the media. and websites outside of 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 brought.

A woman holds a photo of Rehtaeh Parsons at a vigil on April 11, 2013 in Halifax.

This is not the first time that the inflexibility of this publication ban has been criticized. the same situation It emerged 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 child took and shared an explicit photo of her. The teenager was in a coma for two years before her life support was removed. Her case made headlines across the country when her family called for criminal charges to be filed and advocated for changes to address cyberbullying that ultimately contributed to the introduction of a new criminal offense that prohibits sharing intimate images without consent.

But when child pornography charges were brought against two children in 2013, a posting ban was automatically imposed on their identity, effectively silencing Parsons’ family and supporters and sparking widespread outrage, often shared with the #YouKnowHerName hashtag. . Parsons’ family and some media outlets defied the ban entirely.

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

The story disappeared from the news, requests for interviews were halted and a school canceled a scheduled talk, he said.

Parsons’ parents wrote directly to the Nova Scotia Attorney General asking for an exception.

A court request was unsuccessful and the judge concluded that 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 violation of the ban.

Six months later, after initially refusing, the Nova Scotia attorney general issued that directive. Violations of the posting ban would only be prosecuted if Parsons’ name was used in a derogatory manner. The board noted that it was “important for the public to discuss societal problems that affect adolescents.”

This directive is why Star and other outlets can continue to report on the Parsons case; Otherwise, the media could be prosecuted.

Seeing the same situation arise again, several years later, is “heartbreaking,” Canning said. He said the law should already have been amended to allow exceptions at the request of the victim or the victim’s family, if they have died.

“It just put a mountain of pain, unintentionally I’m sure, but a mountain of pain on top of us,” he said.

She wonders what would have happened if charges had been brought immediately and her daughter’s name had never been allowed to be made public in the first place.

“Rehtaeh would have been forgotten. She would have been protected by the courts until they erased her and that’s not right, ”he said. “For us, it was actually an insult, they came out to protect her long after we begged them to do something to protect her.”

Like Parsons’ parents, the mother in the latter case made a direct request to the prime minister of her province and the attorney general, but according to her request for a constitutional challenge, she did not receive a 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 and refused to follow Nova Scotia’s approach.

In the letter, he wrote that his power to run the provincial prosecutor’s office should only be used “sparingly” so as not to compromise his independence from the government.

“It would not be appropriate … to attempt to grant an advance exemption from prosecution for failure to comply with a mandatory publication prohibition order,” the letter said. “The difficulty lies in anticipating the variety of ways a court-ordered publication ban could be violated. No matter how carefully crafted a possible exemption may be, some alleged ‘good faith’ violations could still conflict. “

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

In her letter, the mother said that she understands that the publication ban exists to protect victims from further victimization. But, he wrote, there can be no more harm to his daughter than can be prevented by a publication ban; There is only one punishment by silencing their voices despite evidence that her daughter would want her story told, she said.

“The consequences of breaking this posting ban make it difficult and almost impossible to continue to educate / advocate for others about what happened to (my daughter).”

A hearing has been set for next month.

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