Welcome to “Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t!”
In this episode, Kyla Lee from Acumen Law Corporation discusses a case about publication bans in sexual assault trials—raising important questions about the balance between open court principles and trauma-informed protections for complainants in appellate proceedings.
Key Points Discussed
The Legal Context
In sexual assault trials, publication bans are either required or available to protect the identity of the complainant and, in some circumstances, the accused—particularly if identifying the accused would risk revealing the complainant’s identity. These bans help preserve privacy and encourage victims to come forward. However, when cases are appealed, publication bans don’t automatically extend to appellate proceedings. Courts of appeal must independently determine whether to uphold, modify, or lift the ban. This creates a situation where the accused might be named in appeal decisions even though they were protected at trial, while the complainant’s identity remains protected. This issue came to light in a case called Rhyr before the Ontario Court of Appeal, which questioned whether trial-level bans should continue to apply on appeal, especially when significant evidence is still subject to protection or if the matter might return to a jury trial.
Why This Case Matters
The Tension Between Openness and Protection
Canada’s open court principle is foundational to our legal system—it ensures transparency and public trust in judicial processes. But in sexual assault cases, unrestricted openness can discourage complainants from reporting offences, especially if their identities could be inferred indirectly. Trauma-informed practice demands a more careful approach to protect vulnerable participants in the justice system.
Lack of Supreme Court Direction
The Supreme Court of Canada has not fully addressed how publication bans should be managed in appellate courts or how trauma-informed practices intersect with the open court principle. This case offered an opportunity to provide clarity and establish guidelines that balance public access to court decisions with the need to protect complainants from further harm.
Missed Opportunity for Legal Clarity
The Supreme Court could have:
-Established a consistent framework for handling publication bans in appellate proceedings
-Considered the role of trauma-informed justice in balancing openness and privacy
-Clarified the scope of protections under new Criminal Code provisions related to sexual assault trials
Instead, by declining to hear the case, the Court left important questions unanswered—questions that directly impact both trial fairness and victim participation in the justice system.
Topics Covered
-Publication bans in criminal trials and appeals
-The open court principle versus privacy rights
-Trauma-informed justice and sexual assault law
-The evolving role of appellate courts in protecting anonymity
