Ghomeshi should be forced to testify

jian-ghomeshi-goes-to-trial-620x349

Jian Ghomeshi, and others accused of sexual assault, should have to testify and face cross-examination.

It flies in the face of a basic tenet of law, and there’s a section of the Canadian Charter of Rights and Freedoms that will prevent this from happening, but Ghomeshi should really have to go on the hot seat. He is the one on trial, after all.

Instead, the women who have accused him of sexual assault are the ones facing rigorous cross-examination. Some would say they are being grilled by Ghomeshi’s lawyer, Marie Henein.

It’s all well and good to have a fair trial and make sure you don’t send an innocent person to jail, but we have a problem in Canada.

An estimated 90 per cent of sexual assaults go unreported and of the 10 per cent that are reported, only 25 per cent lead to a conviction. That’s an alarming failure rate and it’s not because women are imagining they’ve been raped or sexually assaulted.

What can the federal government do to turn the tables? They could pass a law that would force those accused of sexual assault to testify and be cross-examined. Section 11 of the Canadian Charter of Rights and Freedoms would normally prevent someone from being compelled to testify in a case in which they are the accused, but there is a trump card the federal government can play.

If Justin Trudeau’s new Liberal government is serious about solving the problem of unsolved and unreported sexual assaults in this country, it should pass a law forcing accused rapists to testify and have their comments and personal histories sifted through and torn apart. The federal government could do this if it invoked Section 33 of the Charter. Also known as the Notwithstanding Clause, it would allow such a law to stand for five years at a time at which time the federal government could let it lapse if it’s not working, or renew it if it is.

When you’re faced with a problem that has reached such epic proportions, you need to get creative and you need to get serious. How much would such a measure help? I don’t know, but it won’t hurt. It would certainly wipe the smug look off a lot of faces and knowing they’ll have to sit in the hot seat could act as a deterrent.

The other solution is to teach men not to rape, but that only works on the nice guys, so let’s roll out the Notwithstanding Clause and use it to fix a problem.

Honour Rehtaeh Parsons’ memory by publishing her name

Dec9

Nova Scotia Attorney General Lena Metlege Diab

Today would have been Rehtaeh Parsons’ 19^th birthday, so I’m going to celebrate by breaking the publication ban again.

Despite overwhelming public support to publish her name without restriction, Nova Scotia’s Attorney General, Lena Metlege Diab has refused to apply a power available to her.

It’s in Section 6 of the Public Prosecutions Act, which allows the Attorney General to order that there will be no prosecution of people who publish Rehtaeh Parsons’ name in connection with the court case against two boys who took and distributed a degrading picture of her while she was vomiting out a window.

It’s a simple way around a statutory publication ban that a judge had no choice but to impose.

On two occasions, Metlege Diab has punted the decision to Martin Herschorn, the Director of Public Prosecutions. He has said in letters to Glen Canning and Nancy Rubin, a lawyer representing four media outlets that challenged to ban, that to use this power would be “unprecedented for this Service, and inappropriate in this context.”

When Herschorn uses the word “unprecedented” it implies that there has to have been a case like this in the past for them to be able to act, but that is not so. All that is required is the legal authority and it is there in black and white in Section 6 of the Public Prosecutions Act. Furthermore, it is not Herschorn’s power to exercise, it is Metlege Diab’s.

As for Herschorn’s repeated use of the word “inappropriate,” well, in the oft-quoted words of film character Inigo Montoya “You keep using that word. I do not think it means what you think it means.”

It is perfectly appropriate. There is no better time to use this power than now. It is perfectly suited for this case and if another similar case came along, it should be used then, too.

Right now, there is a chill. The media are reluctant to use Rehtaeh Parsons’ name and important discussions are not happening because of this ban. Nova Scotia’s Liberal government is failing the public by refusing to act.

In announcing a decision that The Chronicle Herald and many others would not face prosecution, Metlege Diab would be applauded.

If she can’t see the wisdom in using this power, she should at least see the popularity and, like any good politician, she should follow the votes.

Note: There is a petition circulating. To sign it, click here. If you’d like to let Metlege Diab know your thoughts on this, please sign it. You can also send her a message on Twitter at @LenaDiabMLA or send her an e-mail at justmin@gov.ns.ca.

Sexting advocate claims injustice in Rehtaeh Parsons case – despite guilty pleas

Nov26

A screen capture of a comment Parker Donham made on Facebook about the child pornography charges — after the first of two guilty pleas. On Monday, a second boy pleaded guilty to distributing the photo that was used to shame and bully Rehtaeh Parsons.

Sexting advocate Parker Donham says an injustice has been committed against the two boys who pleaded guilty in the Rehtaeh Parsons case and is using the publicity around the case to champion for changes to an “overly broad law.”

Sounds ridiculous doesn’t it? No, I’m not kidding you, it’s true. I might be guilty of putting a little spin on that lede, but it’s exactly what Parker does. If anyone tells you a journalist does not put spin on their copy, don’t believe them. Parker does and he takes spin to Spinal Tap levels.

Don’t take my word for it, go read Parker’s blog titled Moral Panic Makes Bad Law.

In promoting his blog on Facebook, Parker suggests that the court cases in which two boys pleaded guilty involved “a trumped up charge to appease media demands that the boys be punished.”

One might think Parker is just following the advice of the late great George Carlin to “question everything.” If you’re an adherent to that philosophy, you should also question Parker, especially because he is prone to making erroneous assumptions in addition to applying copious amounts of spin to his arguments.

Exhibit 1: He assumes there is no evidence to support sexual assault charges when the agreed statement of facts read in court suggest otherwise. He was not in court either day and seemingly is not aware of these agreed statements of fact. These facts might not convict, but there is other evidence available, and more could have been obtained by police if they simply did their job properly.

Exhibit 2: In his blog, Parker writes that child pornography law is a result of “moral panic” that is leading to “a flurry of child pornography charges against youngsters guilty only of entirely consensual sexting.”

When making that claim, Parker links to this post about a case in British Columbia.

On a more careful examination of the case Parker cites, we realize that while the sexting might have been consensual originally, the criminal charges arose from actions that took place after a relationship ended and could in no way be described as consensual.

For a more accurate description of that case read this. Parker didn’t link to that, or provide more details, because it doesn’t fit his narrative. He is constructing a paper dragon and the only valid argument he is making is that what happened in the Rehtaeh Parsons case does not fit the definition of child pornography that most of us have come to understand.

Of course it is not “child porn” according to that definition, but don’t get sidetracked by our contrarian crusader’s argument. Consider these key points instead:

What the boys did fits the legal definition of child pornography as set down by Parliament. A judge has ruled thus on two occasions. For someone so concerned about the rule of law, Parker should give this more credence. If he doesn’t like these rulings, he should ask Parliament to change the name of the law. Remember, Parker has said what the boys did was “disgraceful and reprehensible.” Presumably, he also thinks it should be prohibited by law as he has said he would have even supported voyeurism charges under Section 162 of the Criminal Code. As best as I can tell, Parker’s only valid objection is the labelling of the crime. This is hardly something that supports an assertion that in “injustice” has been done.
The facts known to police would support laying at least one charge of sexual assault, perhaps two, with a reasonable likelihood of conviction. If you don’t know what this evidence is, open your eyes and keep an open mind. “There are two sides to every story” is something we keep hearing in this case. The truth is somewhere in between the two sides — but not in the middle. That’s because some people simply don’t understand the laws concerning sexual consent in this country. This is the discussion we should be having. It is of monumental importance.
Additionally, this information should have been used by police to elicit more evidence to support those charges, and perhaps others, but the police investigation was woefully inadequate and misdirected, according to Leah Parsons and Glen Canning. Their complaints have sufficient merit that it has prompted the province to hire Murray Segal, the former Deputy Attorney General and Chief Prosecutor of Ontario, to review the way the police and the Public Prosecution Service handled the case. Segal’s review is on hold, but will resume when these criminal proceedings conclude in January.
Whatever legitimate concerns Parker might have about sexting being criminalized pale in comparison to the more pressing concerns this case is about: cyber-bullying, sexual consent, and suicide prevention. Furthermore, to bring them up in connection with this case and suggest that an injustice has been done against the boys is one of the most ridiculous things I’ve ever seen an intelligent person write.
The police, prosecutors and judiciary in this province do not do anything to “appease an enraged public and media.” They do their job and when they fail, they can enrage the public and media which prompts them to actually do their job. That is why we have freedom of the press, to hold our public officials accountable. We don’t have freedom of the press to conscript them into lynch mobs and that is certainly not what happened here. If the police and Crown laid a charge to appease an “enraged press and public,” it makes no sense that they would lay a charge that would automatically invoke a publication ban when another law, voyeurism, was available to them. A more likely motive for the “child porn” charge is that there would be a statutory publication ban – not one that would leave a judge with some discretion. This creates a disconnect from the court proceedings to the handling of the case between November 2011 and April 2013 – the handling that will be under review. The media and public would most certainly have preferred a voyeurism charge so that Rehtaeh Parsons’ name could be published without restriction.

Sometimes, being a contrarian is a good thing. We need contrarians because they challenge us to think and question the zeitgeist. However, this is a cautionary tale about how being a knee-jerk contrarian can put you far out on a ledge — in an untenable position maintained only by stubbornness, not reason.

In a parting cheap shot at journalists who are doing their job and ensuring that public officials are held accountable, Parker writes in his Facebook teaser for the blog post: “This is not the Nova Scotia news media’s finest hour” and refers to some as “journocutors.”

Not our finest hour? Parker, none of us claims to be as perfect as you, but at least we are not creating a distraction from the more important discussions that actually pertain to this case.

If there is fault here, it is with you for creating this attention-seeking distraction. Most importantly, though, the fault lies with the public institutions that failed Rehtaeh Parsons, and not with the media and the public that is seeking justice.

Now, let’s get back to our more important discussions.

Second guilty plea in Rehtaeh Parsons case

Nov24

A sexually degrading photograph of Rehtaeh Parsons was shared at her school as part of relentless cyber-bullying by classmates and even friends.

A sexually degrading photograph of Rehtaeh Parsons was shared at her school as part of relentless cyber-bullying perpetrated by classmates and even friends.

A second boy has pleaded guilty in the Rehtaeh Parsons case.

This time, the boy admitted to distributing the photo that was used to shame Rehtaeh Parsons. This boy, who is also in the picture, is giving the “thumbs-up” sign while standing behind Parsons as she leans out a window to puke.

In an agreed statement of facts read aloud in a Halifax courtroom, Crown Prosecutor Alex Smith says the boy was “having sex” with Parsons at the time, that she did not know the photograph was taken, and that she did not consent to it being taken.

Glen Canning, Parsons’ father, says this raises a vital question.

“They can go on about how Rehtaeh didn’t give consent to this photograph being taken yet for some reason she was able to give consent for sex? Rehtaeh was not in a position to give consent, not just to the photo, but to anything else going on that the photograph shows and that’s why our family is so angry and upset by this. This should have been a charge of sexual assault that’s exactly what it was. There’s no other way that anyone can describe that photo.”

Canning says he can’t imagine there being a case for sexual assault having more evidence than this – a photograph and a confession on social media – and yet there has never been a charge of sexual assault laid in connection to the events that occurred on Nov. 12, 2011 – before and after the photo was taken. The boy who took the photo pleaded guilty on Sept. 22 and was sentenced on Nov. 13. He was given a conditional discharge. That boy, and the boy who changed his plea to guilty today, can’t be named because their identities are protected by Canada’s Youth Criminal Justice Act. There is also a publication ban on the identity of Rehtaeh Parsons because she is the victim in a child pornography case. However, her parents and the Crown opposed that ban, and a judge has said that the ban does not actually protect her identity. This post respectfully disobeys the ban as it applies in this case because there is no public interest served in prosecuting people who violate the ban and a greater public good is served by mentioning her name in this and other important discussions.

No charges were laid while Rehtaeh was alive. After she died in April 2013, the police reopened the case and new information came to light. Four months later, charges of producing and distributing child pornography were laid against two of the four boys alleged to have sexually assaulted her.

“New information came forward after Rehtaeh died, but the RCMP told me there was nothing in that new evidence that told them something they didn’t already know,” Canning said.

Leah Parsons, Rehtaeh’s mom, said her daughter lost the very essence of who she was when that photo was taken and distributed around her school. One of the people who spread it around the school was a friend of Rehtaeh’s, Parsons said. Equally disturbing, the police did nothing to stop it.

“Originally, they said it was child pornography and that they were going to lay charges of sexual assault and child pornography,” Parsons said outside court today. “Within a month, that changed. The photo itself, I was told it was a community issue and not a police issue.”

And now, the person who took that photo and the person who started to spread it around the school to bully and shame Rehtaeh Parsons have both pleaded guilty to criminal charges arising from that.

Canning and Parsons hope their questions will be answered when Murray Segal reviews the way the RCMP and the Public Prosecution Service handled this case. The Nova Scotia Justice department hired Segal, the former Deputy Attorney General and Chief Prosecutor of Ontario, but he has put his review on hold until the conclusion of the criminal matters before the court. Segal will resume his review after that.

The youth who pleaded guilty today will return to court Jan. 15, 2015 for sentencing. His lawyer, Brian Church, declined to speak to reporters after today’s hearing.

The simple solution to publication ban in Rehtaeh Parsons case

Nov18

I appreciated the comments from the caller.
When I decided to break the publication ban, I did so despite the fact that some people would accuse me of doing it for publicity reasons. Anybody who thought — or still thinks — that I did this for publicity reasons didn’t think it through.
I am putting myself at risk of being charged with a criminal offence. There is no doubt in my mind that I am breaking the law. My only saving grace is that it is not in the public interest to prosecute me, just as it’s not in the public interest to prosecute the others who have violated the ban. In addition, the police would also have to charge Glen Canning and Leah Parsons, Rehtaeh’s parents, and that would be a public relations disaster.
If there was so much to be gained from this, why has no other media outlet or journalist in Canada broken the ban? For four months, the opportunity was there and no one took it.
More importantly, there is a simple solution to the publication ban. It doesn’t require Parliament to change this law, which is a good law. It will simply allow people to use Rehtaeh Parsons’ name without restrictions.
The solution, described in my post on Oct. 22, lies with our Attorney General and Justice Minister. Let your MLA know and, more importantly, let a member of Nova Scotia’s Liberal government know what you think about this case.

Lawyer David Fraser pans publication ban in Rehtaeh Parsons case

Nov18

David Fraser is absolutely right. It’s time to end this discussion about the publication ban and shift our focus back to the more important discussions we need to have about cyber-bullying, sexual consent, suicide prevention, and accountability for public officials.
Justice might never come for Rehtaeh Parsons, but at least we can use her memory to learn some valuable lessons and help inform some important discussions.

Accused in Rehtaeh Parsons case set free

Nov13

The boy who took the picture used to shame Rehtaeh Parsons was set free today and won’t spend a day in jail.

The accused, now 20, pleaded guilty in September to production of child pornography. He took a picture of Rehtaeh Parsons and his co-accused. Parsons was puking out a window while the other boy mugged for the camera and gave a thumbs-up sign. Despite admitting his guilt, he won’t go to jail and will have 12 months to meet certain conditions. If he meets them, he will receive a conditional discharge. He will not be put on probation.

Some will say this is a travesty of justice, but Glen Canning – Rehtaeh’s dad – said there won’t be justice until there are charges of sexual assault in the case.

The most telling moment of today’s sentencing came when Judge Greg Lenehan said the 20-year-old Eastern Shore man who took the picture should have known better and told him to consider what he would have wanted someone else to do if it was his sister being violated while she was puking out the window.

“The image you took is an example of the objectification of girls and women,” Lenehan said to him.

The accused shifted uncomfortably on the bench and looked nervous. Then muscles on his face twitched as he seemed to realize the cruelty of what he did.

Lenehan told him he “should never forget the promising, vibrant young life that was eventually destroyed by his choice to record an act of sexual degradation.”

“You did, in a few seconds, set in motion a series of events that led to a great deal of shame, humiliation, anger, despair, anguish, loss, hurt, and destruction for Ms. Parsons, her family, you, your family, and for the entire community.”

Lenehan told him the moment he captured on camera was “not a trophy moment, but that is certainly what it was portrayed as.”

In the era of cellphones when people seem to document everything, this was not a moment to be documented, the judge said.

Despite the tragic impact of the accused’s actions, Lenehan said he had to take into consideration the prime purpose of Canada’s Youth Criminal Justice Act, which emphasizes rehabilitation and reintegration into society. The accused, who was 17 at the time of the incident three years ago, has already shown signs of doing that.

“I accept that he is genuinely remorseful. I think he is quite sickened by the realization that his decision eventually led Rehtaeh Parsons to fall into the deep dark hole of despair from which she could not extricate herself. His actions led to a series of events that eventually drained her of her very essence.”

The accused has been suffering from anxiety and insomnia since the death of Rehtaeh Parsons in April 2013. Lenehan said the accused’s confession to police in August 2013 and his guilty plea on Sept. 22 are all factors that bode well for his rehabilitation. He has a full-time job, has not been in trouble with the law since the incident, nor was he ever in trouble with the law before that.

“This is a very difficult sentencing,” Lenehan said. “Nothing I can do can compensate for her tragic loss of life. There is no measure that could ever properly reflect her value.”

Despite the public calls for revenge, he stressed youth court is “not a court of retribution” and so gave the youth a conditional discharge while imposing some conditions. The accused must seek counselling for 12 months, provide a DNA sample, and write an apology to Rehtaeh Parsons’ parents.

“You are also required to locate and attend, successfully complete a course on sexual harassment,” Lenehan said. “It’s vitally important that you understand how you can interact and treat all females as you go forward.”

“I do not want to hamstring you. I do want to encourage you to become a productive member of society. I want you to be the type of young man that if you ever see somebody humiliating or treating a girl or a woman in any fashion that would call into question their dignity or worth, that you would not stand by and be an observer; that you would be the type of person that would say ‘This needs to stop’ and you would stop it.”

The other accused in this case will stand trial on distribution of child pornography charges on Nov. 24. His father was in court watching today’s proceedings.

Time for Nova Scotia’s Attorney General to step up

Oct22

Director of Public Prosecutions Martin Herschorn (left) and former Justice Minister Ross Landry.

Last fall, Nova Scotia’s Liberal government coasted to an easy electoral victory and among their many promises was a commitment to spend $6 million during a three-year span to boost funding to sexual assault support centres and create a prevention strategy.

Seven months after taking power, Lena Metlege Diab, the Liberal government’s Justice Minister and Attorney General, had an opportunity to do something to prevent sexual assault and failed to do it.

Although there have been no charges of sexual assault in the Rehtaeh Parsons case, it has been alleged that sexual assault took place. The definition of sexual consent is integral to the case and there is a great opportunity to educate people about this.

In light of what happened to Rehtaeh Parsons, keeping her name in a public discussion about sexual consent and cyberbullying — and allowing the media to use her name without restriction — would serve a clear public benefit to women, men, girls, and boys.

As the Attorney General, Metlege Diab has the power to order the Public Prosecution Service to not prosecute any media that violate the publication ban in this case. It says so right in the Public Prosecutions Act.

Power and duties of Attorney General:

6 The Attorney General is the minister responsible for the prosecution service and is accountable to the Assembly for all prosecutions to which this Act applies and

(a) after consultation with the Director of Public Prosecutions, may issue general instructions or guidelines in respect of all prosecutions, or a class of prosecutions, to the prosecution service … (and)

(b) after consultation with the Director of Public Prosecutions, may issue instructions or guidelines in a particular prosecution …

So, given that Metlege Diab has the power, it is disappointing that she wouldn’t exercise it in the Rehtaeh Parsons case. Furthermore, it is odd that if she is the elected person who must answer to the Legislative Assembly, and ultimately the people of this province, that she would let a bureaucrat speak on her behalf. That’s what she did when she let Martin Herschorn, the Director of Public Prosecutions, respond to letters from Nancy Rubin, a lawyer representing the media, and Glen Canning, the father of Rehtaeh Parsons, in which they requested a pronouncement that violations of the publication ban would not be prosecuted.

In the letter, Herschorn said it was “unprecedented for this Service and inappropriate in this context” to issue the pronouncement.

Here’s the catch though, it’s not unprecedented. Michael Baker did it in 2003 to prevent a waste of resources prosecuting firearms registration offences because they would soon be made legal. As for it being inappropriate, with all due respect to Mr. Herschorn, he’s wrong. It is the right thing to do because protecting the identity of a girl who has died, and who became a household name when she committed suicide because the justice system failed her, is the prime example of doing too little, too late.

As if refusing to act wasn’t enough, Herschorn went one step further to seemingly create the perfect Catch-22. He said the Public Prosecution Service only gets involved in reviewing cases once a crime has been committed and once a charge is laid. Essentially, the only way for the Public Prosecution Service would offer an opinion on this matter would be for the media to take the risk of breaking the ban and hoping they wouldn’t be prosecuted. So far, no mainstream media have taken what is a minimal risk, but there have been exceptions.

Glen Canning has broken the ban, Leah Parsons has broken the ban, and I’ve broken the ban. So far, none of us have been charged. Come on in folks, the water’s fine.

Much is made of the Nova Scotia Public Prosecution Service being the first in Canada to be independent from political control. This is a good thing, but before you start the slow clap, let’s take a look back at why Nova Scotia did this back in 1990. It wasn’t some bold innovation. On the contrary, it was cod liver oil served up to the politicians by the Marshall Inquiry.

Two prominent members of John Buchanan’s Tory government – Billy Joe MacLean and Roland Thornhill — were deemed to have received preferential treatment by prosecutors during criminal investigations. The Marshall Inquiry said that, in both cases, the Attorney General of the day relied on misleading or poor reports from Deputy Attorney General Gordon Coles and recommended that the public prosecution service be largely independent of political control.

Nowadays, the Nova Scotia Public Prosecution Service touts itself as being an independent body and it seems proud, almost strident about that, but they act as if the Attorney General, who is answerable to the Legislature, the government and the people of this province, can’t tell them how to do their job.

She can, just has to do it in a public way and can’t give hush-hush orders to protect political cronies or friends. This limitation on the operational independence of the Director of Public Prosecutions is spelled out on the department’s website.

The Attorney General can issue written instructions to the Director of Public Prosecutions and these instructions are binding, but must be made public. The purpose of this is explained by the following excerpt:

This procedure preserves the ultimate prosecutorial authority of the Attorney General. This is a means of ensuring accountability to the electorate for the manner in which public prosecutions are conducted.

In this case, Metlege Diab would make a public pronouncement that would be well-received by the electorate, but so far, her inaction on this issue is as disappointing as the original reaction of her predecessor Ross Landry, the NDP Justice Minister who made this callous remark on April 9, 2013, two days after Rehtaeh Parsons was taken off life support:

“If the evidence isn’t in place, we can’t second-guess every investigation.”

Remember, this is a ban that Rehtaeh Parsons’ parents don’t want, an Ontario Crown Attorney prosecuting the case doesn’t want, and one which Judge Jamie Campbell said doesn’t serve any purpose in this case. So, while the learned judge was rightly applying the law, common sense and justice get short shrift.

As a result of this ban, organizers of two events in Ontario (one in Kingston, the other in Cornwall) have cancelled public speaking engagements for Glen Canning.

That’s the chill that has been created by this ban and it’s got to stop. This is a tremendous opportunity for Nova Scotia’s first female Attorney General to do the right thing.

One of the accused is due back in court for sentencing on Nov. 13 and the other is scheduled for a trial later in the month.

By then, let’s hope that Metlege Diab has given the media the green light to use Rehtaeh Parsons’ name again – without restrictions.

Radio interview about publication ban

Sep25

Rick Howe had me on his show this afternoon. I agreed not to mention Rehtaeh Parsons’ name during the interview, but that is the case we are talking about.

If you’d like to listen, here’s a link.

Guilty plea in Rehtaeh Parsons case

Sep22

Rehtaeh Parsons committed suicide in April 2013. Her death helped spark a new police investigation.

A young man who took the picture used to shame and bully Rehtaeh Parsons has pleaded guilty to production of child pornography.

He admitted to taking the picture of another boy, a co-accused in the case, who was in the picture with Rehtaeh in November 2011 when he was 17 and Rehtaeh was 15. Neither of the accused, who were both under 18 at the time, can be named. Their identities are protected by the Youth Criminal Justice Act.

Crown Attorney Alex Smith read an agreed statement of facts to Halifax Provincial Court Judge Greg Lenehan.

Smith describes the image which shows one boy, naked from the waist down, behind Rehtaeh and pressing his genital region up against her while giving a thumbs-up sign. Rehtaeh Parsons is naked from the waist down.

“At the time the photograph was taken, (one of the accused) was having sex with Rehtaeh Parsons as she was vomiting out the window,” Smith told the court.

The youth in court today faced charges of production and distribution of child pornography. The Crown dropped the charge of distribution.

Another boy, the one in the picture who is charged only with distribution of child pornography, is scheduled to go on trial in November.

There is also a publication ban on the identity of the victim, Rehtaeh Parsons, despite the opposition of the Crown Attorney and her parents. Four Nova Scotia media outlets fought the ban in May, but Judge Jamie Campbell said it was a statutory ban that he had to impose – even though it didn’t make sense because her name was already so well known. In reporting this story today, media outlets continue to observe the ban.

It is the law of the country and judges must do their duty and enforce the law passed by Parliament. That is why the judge cannot be faulted in this case.

This post respectfully disregards the publication ban because a greater public good is served by doing so.

There is a higher goal than upholding the law and that is justice; something that judges, especially those that practice judicial restraint, sometimes do not consider.

There is an oft-told story of a conversation between two great American jurists, Oliver Wendell Holmes and Learned Hand, who met for lunch one day.

As Holmes began to drive away, Hand implored him to “Do justice, sir, do justice!”

Holmes stopped and admonished his fellow judge with this retort: “That is not my job. It is my job to apply the law.”

In the absence of an activist judge, or an Attorney General or Director of Public Prosecutions willing to make a public pronouncement that no charges will be laid in this case, it is left to the media to wonder about the safety of violating the ban.

Henry David Thoreau, in his essay Civil Disobedience, encouraged people to disobey what he called “unjust laws.”

Thoreau wrote: “Unjust laws exist; shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once?”

Let me be clear. It’s not that this law is unjust. It is that it is unjust in this case and should be ignored.

Clearly, this is an exception that Parliament did not think of when they passed the law and they need to amend it.

Lastly, there is a clause in the Youth Criminal Justice Act that allows for the parents of a victim to waive the privacy rights of their children. Glen Canning and Leah Parsons have done so in this case, but Judge Campbell chose not to accept that argument, saying that the Criminal Code provision wins the day – even though it doesn’t really make any sense in this case. See decision here.

Rehtaeh Parsons’ name brings power to any discussion about sexual consent, cyber-bullying, and suicide prevention. Her case prompted important legal reforms in Nova Scotia and the rest of Canada. The federal government, which is working on passing Bill C-13 to counter cyber-bullying, is doing so partly because of what happened to Rehtaeh Parsons.

Most importantly, this change of plea needs to be connected to the case at a time when publication of her name was permitted.

Why?

Because of the way the police and the Public Prosecution Service handled the case. Initially, the police focussed their investigation — such as it was — on sexual assault after an incident in November 2011. They spent most of their early efforts investigating Rehtaeh and took a long time – several months – before interviewing the four teenage boys alleged to have raped her when she was extremely intoxicated.

The Nova Scotia Public Prosecution Service reviewed the case, but didn’t lay charges because there wasn’t a strong enough likelihood of a conviction. It was dubbed a “he said, she said” case amid claims that Rehtaeh had made advances, or at least appeared willing earlier in the evening.

By the time the picture was taken, as the agreed statement of facts read into court today would indicate, Rehtaeh was not in any state to be consenting to sex.

Amazingly, the existence of a photograph of a minor engaged in a sexual act did not spark law enforcement professionals involved in the investigation to consider laying a charge of production and distribution of child pornography. Canning said police and school officials knew of the photo’s existence within a week of it being taken.

“They allowed this image to spread even knowing that this was child pornography. They knew who had it and who was doing it and there was nothing done to stop it,” he said. “Every time it was shared, it victimized Rehtaeh.”

The photo spread like wildfire through her community in a suburb of Halifax. Fellow students called Rehtaeh Parsons a slut and some total strangers texted her and asked her if she wanted to have sex with them. The bullying became too much so she switched schools and sought counselling. She claimed she was raped, but no charges were laid and this added to the grief. She struggled for months, but in April 2013, she committed suicide by hanging herself in the bathroom with a belt.

Her case attracted worldwide attention and even prompted the intervention of Anonymous, who started #OpJustice4Rehtaeh to get the police to reopen the case. The police reopened the case and, amid the furor, some people defended the four boys saying that the sex was consensual.

Within a few months, the police laid charges of production and distribution of child pornography against two of the four boys, but some claimed it was just a way to put an end to mounting public pressure.

Today’s guilty plea should put an end to those claims.

When Judge Greg Lenehan told the young man to meet with a probation officer and cooperate with them in the preparation of a pre-sentence report, he responded in a subdued voice. “Yes, sir.”

He is scheduled to return to court for sentencing on Nov. 13.

For Leah Parsons, Rehtaeh’s mother, nothing will ever bring her daughter back. But keeping her memory alive and using it to make some important changes, means a great deal to her.

“None of it is enough, but the fact that he’s pleading guilty is some consolation,” she said. “I do feel some solace in that she just wanted to be validated and she wanted people to know that this actually happened to her.”