Victim Privacy and the Open Court Principle

Endnotes

CHAPTER 1

[i] (1890) 4 Harv. L. Rev. 193, at 196.
[ii] Id.
[iii] C. Work, "Whose Privacy?" (1994), 55 Montana L. Rev. 209, at 221.
[iv] K. Kury and M. Kaiser, "The Victim's Position within the Criminal Proceedings - An Empirical Study", in G. Kaiser, H. Kury and H.-J. Albrecht, Victims and Criminal Justice , Vol. 51 Criminological Research Reports 581 (Freiburg: Max Planck Institute for Foreign and International Penal Law, 1991).
[v] Charter of Rights and Freedoms , being Part 1 of the Constitution Act, 1982 , enacted by the Canada Act 1982 (U.K.) c.11.
[vi] The Queen v. Bernardo , unreported decision of LeSage A.C.J.O.C., May 29, 1995, at 38 (emphasis in original).
[vii] Preamble, The Victims' Bill of Rights, S.O.1995, c.6.
[viii] Id .
[ix] Id . at s.2(1)2.
[x] Id . (emphasis added).
[xi] See s.722 of the Criminal Code (providing that the court shall, for purposes of sentencing, consider any statement prepared by a victim of the crime describing the harm done or loss arising from the commission of the offence); S.C. 1995, c.22, s.6.
[xii] See, e.g., s.738 and following in the Criminal Code (providing for orders that the offender make restitution to the victim or victims or his or her crime); S.C. 1995, c.22, s.6.
[xiii] Bernardo , supra note 6, at 38.
[xiv] Id .
[xv] Id .
[xvi] Section 271, Criminal Code 1980-81-82, c.125, s.19.
[xvii] R. v. Lavallee , (1990), 76 C.R. (3d) 329.
[xviii] See s.273.2, 1992, c.38, s.1 (indicating when belief in consent is not a defence); see also R. v. Ewanchuck (1999), 22 C.R. (5 ^th ) 1 (elaborating on the requirements of the statutory provision, and confirming that the accused must how an honest and mistaken belief that the complainant had communicated consent).
[xix] See s.33.1, 1995, c.32, s.1 (defining the circumstances, which include interfering with the bodily integrity of another person, when a defence of self-induced intoxication is not available; see also R. v. Daviault , (1994), 33 C.R. (4 ^th ) 165 (S.C.C.) (recognizing intoxication as a defence to a charge of sexual assault).
[xx] It is understood that the complainant in sexual assault proceedings may either be a male or a female. The history of sexual assault, and the privacy and equality concerns of complainants is not gender-neutral. Recognizing, then, that males can also be victims but that the privacy issues have been discussed in gender-specific terms, the Report in most cases describes the complainant as female.
[xxi] See Chapter Three, titled "Victim privacy, sexual assault, and the Charter ".
[xxii] [1996] 3 S.C.R. 480.
[xxiii] Id . at 504.
[xxiv] Id .
[xxv] Id .
[xxvi] Id . at 505.
[xxvii] See Chapter Two, titled "The open court principle and the Charter ".
[xxviii] [1988] 2 S.C.R. 122.
[xxix] [1989] 2 S.C.R. 1326.
[xxx] [1994] 3. S.C.R. 835.
[xxxi] Supra , note 22.
[xxxii] [1991] 2. S.C.R. 577.
[xxxiii] [1995] 4 S.C.R. 411.
[xxxiv] [1999] 3 S.C.R. 668.

CHAPTER 2

[xxxv] Criminal Code , 1892, c.29.
[xxxvi] See s.517 (providing for an order of non-publication of information disclosed in a show cause hearing, which is mandatory on application by the accused, where either the accused or the prosecutor intends to show cause under s.515).
[xxxvii] See s.539 (1) (providing for a non-publication order of evidence taken at a preliminary inquiry, which is discretionary at the request of the prosecutor and mandatory at the request of the accused).; see also s.542 (2) (prohibiting the disclosure of any admission or confession tendered in evidence at a preliminary inquiry).
[xxxviii] See Dagenais v. C.B.C. , [1994] 3 S.C.R. 835.
[xxxix] See s.631(6) (protecting the identity of jurors).
[xl] See s.649 (prohibiting the disclosure of jury proceedings).
[xli] Criminal Code , 1892, c.29, ss.794, 849.
[xlii] Criminal Code , R.S.C. 1906, c. 146, s.645.
[xliii] Id ., s.645 (3).
[xliv] As enacted in 1953-53, s.428 provided as follows:
The trial of an accused that is a corporation or who is or appears t be sixteen years of age or more shall be held in open court, but where the court, judge, justice or magistrate, as the case may be, is of opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice to exclude all or any members of the public from the court room, he may do so. Criminal Code , 1953-54, c.51, s.428.
[xlv] See C.B.C. v. New Brunswick (Re: R. v. Carson) , [1996] 3 S.C.R. 480.
[xlvi] Supra , note 8; see also the Controlled Drugs and Substances Act ; and the Firearms Act , S.C. 1995, c.39. See Young Offenders Act , R.S.C. 1985, c.Y-1, ss. 38 (prohibiting the publication of the names of young persons involved in the commission or prosecution of offences); 39 (granting a court or justice the power to exclude a person or the public from the proceedings); and 17 (providing for the non-publication of information disclosed at an application for transfer to ordinary court). The Youth Criminal Justice Act, R.S.C. 2002, c.1, came into effect April 1, 2003, ss. 110 and 111 (identity of offender, victims and witnesses not to be published); 132 (granting a court or justice the power to exclude a person or the public from the proceedings); 118 (prohibiting access to records unless authorized).
[xlvii] See Dagenais v. C.B.C. [1994] 3 S.C.R. 835; R. v. Mentuck (2001), 205 D.L.R. (4 ^th ) 512 (S.C.C.); and R. v. O.N.E. (2001), 205 D.L.R. (4 ^th ) 542 (S.C.C.).
[xlviii] Charter of Rights and Freedoms , being Part 1 of the Constitution Act, 1982 , enacted by the Canada Act 1982 (U.K.) c.11.
[xlix] Section 1 of the Charterid ., states:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[l] [1988] 2 S.C.R. 122.
[li] [1989] 2 S.C.R. 1326.
[lii] [1994] 3 S.C.R. 835.
[liii] [1996] 3 S.C.R. 480.
[liv] [1913] A.C. 417.
[lv] Id ., at 445.
[lvi] Id . at 447.
[lvii] Id. at 463.
[lviii] Id .
[lix] Id. at 477.
[lx] Id. at 485.
[lxi] Id .
[lxii] Gazette Printing Co. v. Shallow (1909), 41 S.C.R. 339, at 359.
[lxiii] [1936] A.C. 177, at 200 (J.C.P.C.).
[lxiv] [1982] 1 S.C.R. 175.
[lxv] Id . at 183.
[lxvi] Id .
[lxvii] Id . at 183-4.
[lxviii] Id .
[lxix] Id . at 185.
[lxx] Id . (emphasis added)
[lxxi] Id . at 186-7.
[lxxii] Section 2 states that "Everyone has the following fundamental freedoms: … (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication"; the Charter , supra note 14.
[lxxiii] Section 32, id ., specifies that the Charter applies to the Parliament and government of Canada, including matters relating to the Territories, and to the legislature and government of each province; the Charter , supra note 14.
[lxxiv] Section 8, id ., provides: "Everyone has the right to be secure against unreasonable search or seizure"; Id.
[lxxv] Section 7, id ., provides: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice"; Id.
[lxxvi] [1986] 1 S.C.R. 103.
[lxxvii] [1988] 2 S.C.R. 122.
[lxxviii] When first enacted, s.442(3) provided that the order could only be made if the prosecutor applied for it, but then it was mandatory for the trial judge to grant it. S.C. 1974-75-76, c.93. It was amended to enable the judge to make the order at his or her initiative, and to make the order mandatory once either the prosecutor or complainant applied for it. S.C. 1980-81-82, c.125.
[lxxix] (1985), 49 O.R. (2d) 557 (O.C.A.).
[lxxx] Id. at 574-75.
[lxxxi] Id . at 577.
[lxxxii] Id . at 564.
[lxxxiii] It is understood that the complainant in sexual assault proceedings may either be a male or a female. The history of sexual assault, and the privacy and equality concerns of complainants is not gender-neutral. Recognizing, then, that males can also be victims but that the privacy issues have been discussed in gender-specific terms, the Report in most cases describes the complainant as female.
[lxxxiv] [1988] 2 S.C.R. 122, at 129.
[lxxxv] Id . at 130.
[lxxxvi] Id .
[lxxxvii] Id . at 131-32 (emphasis added).
[lxxxviii] Id . at 133. For instance, the section applies only to sexual offences, it restricts publication of facts related to identity and does not provide for a general ban, and is limited to instances where the prosecutor or complainant requests the ban.
[lxxxix] See, e.g. , R. v. Several Unnamed Persons (1983), 44 O.R. (20) 84 (Ont. H.C.) (dismissing applications by several accused charged with gross indecency for orders banning the disclosure of their identities).
[xc] See, e.g.Peterborough City v. Ramsden , [1993] 2 S.C.R. 1084.
[xci] Note, though, that her testimony was based on interview information with more than 100 victims. Supra note 45, at 563-64.
[xcii] (1989), 64 D.L.R. (4 ^th ) 577 (S.C.C.).
[xciii] Justice Cory wrote for himself, as well as for Chief Justice Dickson and Lamer J.; together with Wilson J., who concurred, the four judges formed a majority. La Forest J.'s dissent was joined by L'Heureux-Dubé J. and Sopinka J.
[xciv] Id . at 607.
[xcv] Id .
[xcvi] Id . at 608.
[xcvii] Id . at 610.
[xcviii] Id .
[xcix] Id . at 614.
[c] Id . at 615.
[ci] Id . at 589.
[cii] Id. at 590.
[ciii] Id . at 592.
[civ] Id . at 593.
[cv] Id . at 600.
[cvi] Id .
[cvii] Id . at 603.
[cviii] [1991] 1 S.C.R. 671.
[cix] Id . at 679.
[cx] Id . at 687 (emphasis added).
[cxi] Id . at 702 (emphasis added).
[cxii] Id . (emphasis added).
[cxiii] Id . at 714 (emphasis added).
[cxiv] Id .
[cxv] [1994] 3 S.C.R. 835.
[cxvi] Id .
[cxvii] Id . at 876 (emphasis in original).
[cxviii] Id . at 877.
[cxix] Id .
[cxx] Id . at 875.
[cxxi] Id. at 878 (emphasis in original).
[cxxii] In addition to C.B.C. (Re: R. v. Carson) , see R. v. Mentuck (2001), 205 D.L.R. (4 ^th ) 512; and R. v. O.N.E. , (2001), 205 D.L.R. (4 ^th ) 542.
[cxxiii] Dagenais , at 857-67 (explaining the convoluted grounds for finding jurisdiction to hear the appeal).
[cxxiv] Id . at 877.
[cxxv] Id .
[cxxvi] Id .
[cxxvii] [1996] 3 S.C.R. 480.
[cxxviii] R.S.C. 1985, c.C-46.
[cxxix] New Brunswick , at 508.
[cxxx] Id . at 515-6.
[cxxxi] Id . at 516 and f.
[cxxxii] Id . at 521.
[cxxxiii] Id .
[cxxxiv] Id .
[cxxxv] "Indeed", La Forest J. remarked, "Rice Prov. Ct. J. expressly stated that he did not have all the facts before him in making the order"; id . at 520.
[cxxxvi] Id . at 521.
[cxxxvii] Id . at 522.
[cxxxviii] Id . at 493.
[cxxxix] Id .
[cxl] Id . at 497.
[cxli] Id . at 504.
[cxlii] [1995] 4 S.C.R. 411, see Chapter Three.
[cxliii] Id .
[cxliv] Id .
[cxlv] Id . at 503.
[cxlvi] Id . at 505.
[cxlvii] See R. v. Mentuck (2001), 205 D.L.R. (4 ^th ) 512; and R. v. O.N.E. (2001), 205 D.L.R. (4 ^th ) 542.
[cxlviii] In Mentuck , Iacobucci J. re-framed the Dagenais test to allow explicitly for other crucial aspects of the administration of justice. There, the issue was whether a publication ban on the details of an undercover operation violated s.2(b) of the Charter . After agreeing with the Dagenais requirement that the ban be necessary and proportional, he stated the proper analytical approach this way: In his view, a ban should only be ordered when:
a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
b) the salutary effects of the publication ban outweighs the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

CHAPTER THREE

[cxlix] See Chapter Two.
[cl] It is understood that the complainant in sexual assault proceedings may either be a male or a female. The history of sexual assault, and the privacy and equality concerns of complainants is not gender-neutral. Recognizing, then, that males can also be victims but that the privacy issues have been discussed in gender-specific terms, the Report in most cases describes the complainant as female.
[cli] [1991] 2 S.C.R. 577.
[clii] [1995] 4 S.C.R. 411.
[cliii] [1999] 3 S.C.R. 668.
[cliv] Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.
[clv] Hunter v. Southam , [1984] 2 S.C.R. 145, at 155.
[clvi] Id . at 155.
[clvii] Id .
[clviii] Id . at 159 (emphasis added).
[clix] Id .
[clx] R. v. Dyment , [1988] 2 S.C.R. 417, at 428.
[clxi] Id . at 427.
[clxii] Id . at 428.
[clxiii] Id . at 426.
[clxiv] Id . at 429.
[clxv] Id .
[clxvi] Section 7 states: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." Charter , supra note 6.
[clxvii] R. v. Mills , [1986] 1 S.C.R. 863.
[clxviii] Section 11 states that "Any person charged with an offence has the right … (b) to be tried within a reasonable time." Charter , supra note 6.
[clxix] Supra note 19, at 918 (stating that the fundamental purpose of s.11(b) is to secure, within a specific framework, the more extensive right to liberty and security of the person of which no one may be deprived except in accordance with the principles of fundamental justice.)
[clxx] Id .
[clxxi] Id .
[clxxii] [1988] 1 S.C.R. 30, at 54.
[clxxiii] Id .
[clxxiv] Id . at 56.
[clxxv] Id . at 171.
[clxxvi] Id . at 175 (emphasis added).
[clxxvii] 1980-81-82-83, c. 125, s.19.
[clxxviii] R.S.C. 1985, c.C-46.
[clxxix] Id .
[clxxx] Section 273.2 (where belief in consent is not a defence); 1992, c.38, s.1.
[clxxxi] Section 33.1 (when defence of self-induced intoxication is not available); 1995., s.32, s.1.
[clxxxii] As noted above, the complainant, in this study, is described in gender-specific terms. By the same token, the accused is referred to as "he". Although there are exceptions to the gender-specific terminology used here, the debate about victims privacy in sexual assault proceedings presupposes that the accused and the victim are gender-specific individuals.
[clxxxiii] [1991] 2 S.C.R. 577.
[clxxxiv] Criminal Code , R.S.C. 1985, c. C-46 (formerly s.246.6 and 246.7 of the Criminal Code , R.S.C. 1970, c. C-34).
[clxxxv] Seaboyer , at 634-36.
[clxxxvi] Id . at 711.
[clxxxvii] Id . at 613. Those exceptions were rebuttal evidence, evidence going to identity, and evidence relating to consent to sexual activity on the same occasion as the trial incident.
[clxxxviii] Id . at 620.
[clxxxix] Id . at 619.
[cxc] Id . at 605-6.
[cxci] Id . at 617.
[cxcii] Id . at 603-4.
[cxciii] Id . at 619.
[cxciv] Id . at 598.
[cxcv] Id . at 612.
[cxcvi] Id . at 634-36.
[cxcvii] Id . at 712.
[cxcviii] Id .
[cxcix] Id . at 648.
[cc] The most common myths and stereotypes are listed in her reasons, id ., at 651-53.
[cci] Id . at 655.
[ccii] Id . at 650.
[cciii] Id . at 665.
[cciv] Id . at 664.
[ccv] Id . at 665.
[ccvi] Id . at 700.
[ccvii] Id . at 702-3.
[ccviii] Id . at 709-10 (emphasis in original).
[ccix] S.C. 1992, c.38.
[ccx] [1995] 4 S.C.R. 411.
[ccxi] S.C. 1997, c. 30.
[ccxii] [1999] 3 S.C.R. 668.
[ccxiii] [1993] 4 S.C.R. 419.
[ccxiv] See Section 715.1, R.S.C., 1985, c.C-46.
[ccxv] L.(D.O.) , at 441.
[ccxvi] Id . at 441-42.
[ccxvii] Id . at 465.
[ccxviii] See s.486(2.1), R.S.C. 1985, c. 19.
[ccxix] See Chapter Two.
[ccxx] O'Connor , at 503 (emphasis added).
[ccxxi] The other central issue in O'Connor , which is not discussed here, is whether the accused was entitled to a stay of proceedings in the circumstances.
[ccxxii] [1991] 3 S.C.R. 326.
[ccxxiii] Note that whereas Stinchombe addressed the duties of Crown officers, who are unquestionably bound by the Charter , third parties in possession of records pertaining to a complainant are not.
[ccxxiv] Thus the joint opinion stated that in cases involving the production of third party records, "we are concerned with the competing claims of a constitutional right to privacy in the information, on the one hand, and the right to full answer and defence on the other." O'Connor , at 433-34 (emphasis added).
[ccxxv] O'Connor , at 479.
[ccxxvi] Id. , at 479-80.
[ccxxvii] Id . at 480.
[ccxxviii] Id .
[ccxxix] Id . at 483.
[ccxxx] Id . at 482.
[ccxxxi] Id . at 483.
[ccxxxii] Id .
[ccxxxiii] Id . at 484.
[ccxxxiv] Id . at 487 (emphasis added).
[ccxxxv] Id . at 486.
[ccxxxvi] Id . at 490 (emphasis added).
[ccxxxvii] Id . at 488.
[ccxxxviii] Id .
[ccxxxix] Id .
[ccxl] Id .
[ccxli] Id . at 491.
[ccxlii] Id. at 492.
[ccxliii] Id . at 503.
[ccxliv] [1999] 3 S.C.R. 668.
[ccxlv] [1995] 4 S.C.R. 536, at 581.
[ccxlvi] Id . at 581-82.
[ccxlvii] [1997] 1 S.C.R. 80.
[ccxlviii] See Chapter Two.
[ccxlix] [1997] 1 S.C.R. 157.
[ccl] Id., at 171.
[ccli] Id . at 175.
[cclii] Mills , at 688.
[ccliii] Id .
[ccliv] Id . at 689.
[cclv] Id .
[cclvi] Id . at 713.
[cclvii] Id . at 718.
[cclviii] Id . at 719.
[cclix] Id . at 719-20.
[cclx] Id . at 724.
[cclxi] Id . at 726.
[cclxii] Id . at 727.
[cclxiii] Id . at 741.
[cclxiv] Id . at 727.
[cclxv] Id .
[cclxvi] Id . at 747.
[cclxvii] [2000] 2 S.C.R. 443.
[cclxviii] [1999] 1 S.C.R. 330.
[cclxix] [2002] S.C.C. 12.
[cclxx] Id . at para. 115.

CHAPTER FOUR

[cclxxi] The First Amendment states that "Congress shall make no law … abridging the freedom of speech or of the press", and the prohibition also applies to the fifty states through the Fourteenth Amendment. The Sixth Amendment which also binds the states as well as the federal government, states that in all criminal prosecutions, the accused "shall enjoy the right of a speedy and public trial". The United States Constitution .
[cclxxii] S. Boylan, "Coffee From A Samovar: The Role of the Victim in the Criminal Procedure of Russia and the Proposed Victim Rights Amendment to the United States Constitution" (1998), 4 U.C. Davis J. of Int'l L. & Pol'y 103, at 105.
[cclxxiii] See generally M. Joutsen, "Listening to the Victim: The Victim's Role in European Criminal Justice Systems", (1987) 34 Wayne L. Rev. 95-124.
[cclxxiv] Id . at 115.
[cclxxv] Though common law systems generally permit private prosecutions, criminal proceedings are rarely initiated by private citizens, and the victims of crimes, otherwise, have been viewed as witnesses with no independent status in the process.
[cclxxvi] See A. Goy, "The Victim-Plaintiff in Criminal Trials and Civil Law Responses to Sexual Violence", (1996) 3 Cardozo Women's L.J. 335-348; and W. T. Pizzi and W. Perron, "Crime Victims in German Courtroons: A Comparative Perspective on American Problems", (1996) 32 Stanford J. of Int'l L. 37-64.
[cclxxvii] Goy, id ., at 336.
[cclxxviii] Pizzi and Perron, supra note 6, at 59.
[cclxxix] Goy, supra note 6, at 340-41, and Pizzi and Perron, id. , at 60-61. Further information about the kind of public interest that will outweigh victim privacy was not provided.
[cclxxx] See Chapter Two.
[cclxxxi] J.R. Spencer, "Improving the Position of the Victim in English Criminal Procedure", (1997), Israel L. Rev. 286, at 290.
[cclxxxii] Id.
[cclxxxiii] Sexual Offences (Amendment) Act 1976 , s.4.
[cclxxxiv] Spencer, supra note 11, at 291.
[cclxxxv] Id .
[cclxxxvi] See Sexual Offences (Amendment) Act , 1992, c.34.
[cclxxxvii] Spencer, supra note 11, at 291 (explaining the Children and Young Persons Act 1933, s.39).
[cclxxxviii] Id .
[cclxxxix] Id ., at 286-87.
[ccxc] H. Reeves and K. Mulley, "The New Status of Victims in the UK: Opportunities and Threats", in A. Crawford and J. Goodey, eds. Integrating a Victim Perspective Within Criminal Justice: International Debates (Aldershot: Dartmouth Publishing Co. Ltd., 2000), at 125.
[ccxci] Id . at 134.
[ccxcii] See Chapter Three.
[ccxciii] S. Garkawe, "The Role of the Victim During Criminal Court Proceedings" (1994), 17 U.N.S.W.L.J. 595, at 598.
[ccxciv] M. Findlay, S. Odgers and S. Yeo, Australian Criminal Justice (Victoria: Oxford University Press, 2 ^nd ed. 1999), at 344.
[ccxcv] Victims Rights Act , 1996 No. 114 (N.S.W.).
[ccxcvi] Garkawe, supra note 23, at 602.
[ccxcvii] Criminal Law (Sexual Offences) Act , s. 4(1) & (2).
[ccxcviii] Id ., s. 5.
[ccxcix] Id ., s.6.
[ccc] Id .
[ccci] [1995] 1 N.Z.L.R. 539.
[cccii] Id . at 546.
[ccciii] Id . at 546.
[ccciv] Id . at 544.
[cccv] The Constitution Act, 1867 , U.K. 30 & 31, c.3.
[cccvi] The First Amendment states, in part, that "Congress shall make no law … abridging the freedom speech, or of the press…" The United StatesConstitution .
[cccvii] See, e.g.,Canadian Newspapers v. Canada (A.G.) , [1988] 2 S.C.R. 122 (upholding the ban on publication of a sex crime victim's identity); and Edmonton Journal v. Alberta (A.G.) , [1989] 2 S.C.R. 1326 (invalidating a publication ban on information revealed in matrimonial proceedings); see Chapter Two.
[cccviii] Palko v. Connecticut , 302 U.S. 319 (1937).
[cccix] Note that the Fourth Amendment, which guarantees the "right of the people to be secure … against unreasonable searches and seizures", is akin to s.8 of the Charter . Note also Griswold v. Connecticut , 381 U.S. 479 (1965) (discovering a constitutional right of privacy in the "penumbras" emanating from the specific guarantees, as well as in other extra-textual sources of authority).
[cccx] But see Aubry v. Vice-Versa , [1998] 1 S.C.R. 591 (upholding liability, under Quebec's Civil Code , for the unauthorized publication of a photograph).
[cccxi] 430 U.S. 829 (1977).
[cccxii] 443 U.S. 97 (1979).
[cccxiii] 420 U.S. 469 (1975).
[cccxiv] 491 U.S. 524 (1989).
[cccxv] 420 U.S. 469 (1975).
[cccxvi] Cohn , at 487.
[cccxvii] Id . at 491-92.
[cccxviii] Id . at 494-95.
[cccxix] Id . at 495.
[cccxx] Id . at 496.
[cccxxi] Id . at 496 (emphasis added).
[cccxxii] 430 U.S. 308 (1977).
[cccxxiii] 427 U.S. 539 (1976).
[cccxxiv] Oklahoma Publishing , at 311.
[cccxxv] 443 U.S. 97 (1979).
[cccxxvi] Id . at 103.
[cccxxvii] Given that there were other ways to protect the confidentiality of juvenile proceedings, criminal penalties were in the Court's view unnecessary. Id . at 105.
[cccxxviii] Id . at 109-10 (emphasis added).
[cccxxix] 491 U.S. 524 (1989).
[cccxxx] Id . at 533.
[cccxxxi] Id . at 536.
[cccxxxii] Id . at 541.
[cccxxxiii] Id . at 542 (citing Coker v. Georgia ).
[cccxxxiv] Id . at 545.
[cccxxxv] Id . at 553.
[cccxxxvi] Id . (emphasis added).
[cccxxxvii] Id .
[cccxxxviii] 448 U.S. 555 (1980).
[cccxxxix] Id . at 573.
[cccxl] Id . at 569.
[cccxli] Id . at 570.
[cccxlii] Id . at 571.
[cccxliii] Id . at 581.
[cccxliv] See Chapter Two.
[cccxlv] 457 U.S. 596 (1982).
[cccxlvi] Id . at 607.
[cccxlvii] Id . at 609-10.
[cccxlviii] Id . at 610 (emphasis in original).
[cccxlix] Id . at 615.
[cccl] Id . at 616.
[cccli] Id . at 617.
[ccclii] See Canadian Newspapers v. Canada , Chapter Two.
[cccliii] Id . at 618.
[cccliv] Id . at 619.

CHAPTER FIVE

[ccclv] See H. Benedict, Virgin or Vamp: How the Press Covers Sex Crimes (U.S.A.: Oxford University Press, 1992).
[ccclvi] See Chapter Three.
[ccclvii] See Chapter Two.
[ccclviii] Much, if not most, of the the discussion in the American literature is specific to the crime of rape. As noted in Chapter Three, Canada has abandoned that offence and replaced it with a series of offences which relate to sexual assault. The text in this part of the Chapter refers to rape, sexual assault, and sexual offences without interrupting the discussion to refine the terminology on an ongoing basis.
[ccclix] Benedict, supra note 1, at 3.
[ccclx] Id .
[ccclxi] Id . at 14-18. The myths she lists and describes in the pages cited are: rape is sex; the assailant is motivated by lust; the assailant is perverted or crazy; the assailant is usually black or lower class; women provoke rape; women deserve rape; only "loose" women are victimized; sexual attack sullies the victim; rape is a punishment for past deeds; and women cry rape for revenge.
[ccclxii] Id . at 18.
[ccclxiii] Id . at Preface .
[ccclxiv] Id . at 254.
[ccclxv] See Chapter Four.
[ccclxvi] Smith v. Daily Publishing Co. , 443 U.S. 97, at 108 (1979).
[ccclxvii] The Florida Star v. B.J.F. , 491 U.S. 524, at 553 (1989).
[ccclxviii] Id . at 547.
[ccclxix] Id .
[ccclxx] Id . at 537.
[ccclxxi] Id .
[ccclxxii] M. Gartner, "Panel Discussion", in Symposium: The Privacy Rights of Rape Victims in the Media and the Law (1993), 61 Fordham L. Rev. 1133.
[ccclxxiii] See Chapter Two.
[ccclxxiv] D. Denno, "Perspectives on Disclosing Rape Victims' Names", in Symposium , supra note 18, at 1129 (quoting Dershowitz).
[ccclxxv] Gartner, supra note 18.
[ccclxxvi] S. Hutt, "In Praise of Public Access: Why the Government Should Disclose the Identities of Alleged Crime Victims" (1991), 41 Duke L.J. 368, at 398 (quoting Nadine Strossen).
[ccclxxvii] K. O'Brien, "South Carolina: Last Haven for Rape Victim Privacy?" (1999), 30 S.C.L. Rev. 873, at 880.
[ccclxxviii] Gartner, supra note 18, at 1133.
[ccclxxix] Id .
[ccclxxx] Id .
[ccclxxxi] P. Marcus and T. McMahon, "Limiting Disclosure of Rape Victims' Identities" (1991), 64 Cal. L. Rev. 1019, at 1033.
[ccclxxxii] H. Benedict, "Panel Discussion" in Symposium , supra note 18, at 1145.
[ccclxxxiii] Id .
[ccclxxxiv] S. Leone, "Protecting Rape Victims' Identities: Balance Between the Right to Privacy and the First Amendment" (1993), 27 New Eng; L. Rev. 883, at 911.
[ccclxxxv] Gartner, supra note18, at 1133.
[ccclxxxvi] Id .
[ccclxxxvii] Id .
[ccclxxxviii] Marcus and McMahon, supra note 27, at 1034, n. 73 (quoting Ziegenmeyer).
[ccclxxxix] [1995] 4 S.C.R. 707.
[cccxc] Id . at 712.
[cccxci] Id . at 721.
[cccxcii] See Chapter Two.
[cccxciii] R. v. Bernardo , [1993] O.J. No. 2047.
[cccxciv] The Queen v. Bernardo , unreported decision of LeSage A.C.J.O.C. , May 29, 1995.
[cccxcv] Re Estate of French et al. v. Ontario (Attorney General) , (1996) 134 D.L.R. (4 ^th ) 587 (On. Gen. Div.); aff'd (1998), 122 C.C.C. (3d) 449 (O.C.A.).
[cccxcvi] See generally, B. MacFarlane and H. Keating, "Horrific Video Tape as Evidence: Balancing Open Court and Victim's Privacy" (1999), 41 Crim. L. Q. 413.
[cccxcvii] R. v. Bernardo , [1993] O.J. No. 2047.
[cccxcviii] Id . at para. 141.
[cccxcix] Id . at para. 142.
[cd] Id . at para.137.
[cdi] Id . at para. 140.
[cdii] Id . at para. 75.
[cdiii] Id . at para. 76.
[cdiv] Id . at pare. 83.
[cdv] Id . at para. 86.
[cdvi] Id . at paras. 134-35.
[cdvii] See Chapter Two.
[cdviii] K. Davey, Karla's Web (Toronto: Penguin Books Canada, 1994) at 40.
[cdix] Id .
[cdx] Id . at 40-41.
[cdxi] Id. at 94-95.
[cdxii] The Ontario Court of Appeal quashed an appeal from the order of Kovacs J., on the ground that there was no right of appeal to the appellate court from the trial judge's decision. (1994), 95 C.C.C.(3d) 437 (O.C.A.).
[cdxiii] See Chapter Two.
[cdxiv] As John Rosen, who was acting for Bernardo, explained, the parents of the two deceased girls are no different from the parents of other victims of murder. R. v. Bernardo , (1995) 38 C.R. (4 ^th ) 229, at 234 (Ont. Gen. Div.).
[cdxv] Id . at 236.
[cdxvi] Id . at 237.
[cdxvii] Id .
[cdxviii] The Queen v. Bernardo , unreported decision of LeSage A.C.J.O.C., May 29, 1995, at 35-36 (emphasis added).
[cdxix] The application for leave to appeal was filed on June 2, 1995 and dismissed, without reasons, on June 13, 1995.
[cdxx] Re Estate of French et al. v. Ontario (Attorney General) (1996), 134 D.L.R. (4 ^th ) 587 (Ont. Gen. Div.); aff'd (1998), 122 C.C.C. (3d) 449 (O.C.A.).
[cdxxi] (1999), 38 O.R. (30) 347 (O.C.A.).
[cdxxii] Id ., at 357-58.
[cdxxiii] See C. Blatchford, "Destroying evidence sets an eerie precedent", National Post , December 22, 2001.
[cdxxiv] This is the question posed by the third step of the Oakes proportionality test. There, the question is only asked after a Charter violation has survived the other parts of the analysis. Here, the question is asked in a more abstract or reflective way.
[cdxxv] Bernardo , supra note 39, at 36.
[cdxxvi] Id . at 37.
[cdxxvii] Id .
[cdxxviii] Karla: A Pact With the Devil (Canada: Cantos International, 2003).

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Victim Privacy and the Open Court Principle

Endnotes

CHAPTER 1

CHAPTER 2

CHAPTER THREE

CHAPTER FOUR

CHAPTER FIVE