Right call to ban child porn victim’s name
Judge notes there will be no exceptions
You know her name. Almost everyone in Canada does.
As one of the lawyers involved in the case said once, the girl achieved “quasi- celebrity status” such that she’s known now by her first name, like Rihanna.
You also know the bare bones of the story.
At a small house party in Halifax in November 2011, a boy took a picture of a friend having sex with the girl from behind while she leaned out a window, vomiting. The next day, he sent the picture to his friend, the boy who’d been having sex with the girl. The picture was later sent to numerous others, most of them students at the same Halifax-area high school the girl and both boys attended.
In the photo, the boy’s friend and the girl are naked from the waist down. The boy is smiling at the camera and is giving the thumbs-up sign.
In April last year, after trying to kill herself by hanging, the girl suffered lethal brain damage and died. She was 17.
Now there were all sorts of controversies within the story — about the quality of the police investigation, about the nature and timing of the charges that were eventually laid — and the girl’s death sparked an enduring national discussion about cyber-bullying, led by the girl’s parents, who went public with their daughter’s story.
Ultimately, the two boys were charged with child pornography offences.
One, who is alleged to be the boy in the picture, faces trial in November.
But Monday the other, who is now 20, pleaded guilty to making child pornography by taking that photo. He will be sentenced Nov. 13.
The frustration for the girl’s parents and their supporters, who sat in the back row of the courtroom wearing T-shirts proudly bearing the girl’s name, is that now her name is covered by a publication ban.
This May, with the support of the parents, a group of media outlets applied in Nova Scotia provincial court to have the ban lifted.
Actually, as Judge Jamie Campbell noted, the parents’ support went “beyond mere consent. They note that continuing to raise awareness of their daughter is in the public interest and that she should remain a presence in the current court proceeding ...”
The lawyers, including the prosecutor, before Judge Campbell had come up with an appetizing out — while the Criminal Code is hard-rock adamant that no victim of child pornography can ever be identified, there’s a provision in the Youth Criminal Justice Act that permits privacy rights to be waived in some cases. The lawyers argued that perhaps the judge could read the outright prohibition with “modifi- cation” and, essentially, soften the out-and-out ban.
Or, as the judge put it, “On its face it seems to present an elegant solution and a clever way out of the conundrum of how to get around the ban nobody wants.”
“Actually,” Judge Campbell added in parentheses, “it’s the ban that everybody wants, to protect the victims in child pornography cases. They just don’t want it for this case.”
Put another way, he said, he had “an opportunity to go along to get along, ask no questions and satisfy most people in the process. I could do that.”
But he didn’t, and here’s why.
First of all, the YCJA is intended to reflect the unique le- gal terrain occupied by young people. Its essence, as the judge said, “is an age-based distinction giving rise to diminished responsibility.” A key part of that is the protection of young people’s privacy rights. And public policy, as expressed by Parliament in the legislation, “is that there are no circumstances that would ever justify publication, in the context of any case before the court, of the identity of a person whose image appears in child pornography. The child can’t waive it, the parents can’t waive it, and the Crown can’t waive it. Even the judge can’t waive it.”
Judge Campbell, who was appointed to the Nova Scotia Supreme Court a month after this decision, didn’t just fall off the judges’ turnip truck. He’d been on the provincial bench by this point for nine years. He knew judges could fiddle with the law, or as he put it, “stretch interpretations,” and that lawyers then would try to stretch it further.
“And some would say, ‘Just do it and let her name be heard. What’s the harm?’ ”
Then he said, “Well, here’s the harm. When judges stretch the law to accommodate the needs of individual cases they risk creating precedents that are not what anyone intended ... A judicial decision, even in youth justice court in Halifax, can have implications beyond the case itself.”
Child pornography, he said, “is an offence that involves behaviour that can plumb the depths of human depravity.”
Parents, the judge noted, have been known to produce pornographic images of their own kids. Imagine a sole surviving parent being able to “publish the name of his deceased child as the person whose image appears in the child pornography that he himself is accused of having produced.”
Judge Campbell wasn’t blind to the circumstances of the case.
He agreed that “allowing her parents to waive her privacy rights would be a good thing if it could be done just for this case, just this once.” He hinted that, “if the media tell the public what the public already knows” and break the ban in reporting the boy’s guilty plea, the Crown could decide not to prosecute.
But he wasn’t going to be the guy who got a little cute and stretched this particular law. So, as ludicrous as it may feel to not name this girl, for the other girls, and boys, who may be around the corner as child pornography victims, it’s the right call.