Three years ago, a severely malnourished 2-year-old girl died at the hands of her parents, but the public isn’t allowed to know who she was.
A judge imposed a rare, sweeping publication ban at the start of her parents’ trial in Brampton. They were convicted by a jury last week of manslaughter and will be sentenced on Dec. 1.
Superior Court Justice John Sproat’s order was specifically imposed on the names of the victim and her surviving sibling, and any information that could identify them, meaning the parents’ names, are also being kept secret.
This kind of publication ban has been described as rare by legal experts, who say it hinders the public’s ability to properly scrutinize what is taking place in the court system, and chips away at the open courts principle recognized by the Supreme Court of Canada.
“We don’t have secret trials. We don’t have nameless people accused of crimes,” said University of King’s College journalism professor Dean Jobb, author of Media Law for Canadian Journalists. “It is extremely rare for someone to be tried and convicted for such a serious offence and their names being banned from publication.”
Jurors at the manslaughter trial were told that the 2-year-old girl, who had never crawled or walked, stopped breathing on Feb. 25, 2011 after an asthma attack and died from shock. The trial heard she had a rare case of Rickets blamed on a lack of Vitamin D that had also caused two broken bones. She also had anemia, protein deficiency, and was undersized and underweight for her age.
This publication ban on her family’s identity is unlike bans that are automatically imposed on identities of victims of sexual assault or that temporarily prevent publishing information from a bail hearing ahead of a trial.
This type of ban, which falls under Section 486.5 of the Criminal Code, is intended to prohibit “revealing the names of victims, witnesses and justice system participants, where the order is deemed necessary for the proper administration of justice.” It is unclear if any evidence was given to support the ban, as is normally required.
“How can the public scrutinize the court without full and accurate reporting of what’s happening?” asked lawyer Iris Fischer, who has represented the Star and other media outlets. “Usually, what is required for this kind of ban is evidence of a real risk of harm.”
The ban was imposed on Sept. 19 after being requested by the Crown to protect the identity of the surviving sibling, said Ministry of the Attorney General spokesman Brendan Crawley. A transcript from that day shows very brief deliberations took place between Sproat and Stephen Proudlove, representing the father, who is only identified as S.H. The document shows that Sproat initially only ordered a ban on the victim’s name, but then told the registrar that he “misspoke” and wanted a ban on the surviving sibling’s name as well. No reasons were given.
Proudlove declined to comment. Crown attorney Eric Taylor forwarded the Star’s request to Crawley, who did not respond to a question about whether any evidence was presented.
There have been cases in the past where surviving family members’ identities have still been protected while the identities of the victim and accused remained in the open. The most notable case is that of Jeffrey Baldwin, the 5-year-old Toronto boy who starved to death at the hands of his grandparents, Norman Kidman and Elva Bottineau, in 2002.
At the grandparents’ 2005 trial, their lawyers and counsel for the Catholic Children’s Aid Society requested a wide-ranging publication ban to protect the identities of Jeffrey’s three surviving siblings, but which could have potentially applied to other information as well. The Star and other media outlets successfully opposed the ban, which was narrowed to only prohibit naming the siblings, something outlets had asked for all along.
Lawyer Iain MacKinnon, who has represented the Star in the past, said the ban in the Brampton case is worth appealing, as it creates a “slippery slope” in terms of what information from the courts can be made public.
“You have the risk of opening up the doors to all kinds of reasons and rationales for why a publication ban should be ordered,” he said. “The Supreme Court of Canada has already established that our courts system is about openness, access and full transparency.”
With files from The Brampton Guardian