Lawyer fears 'slippery slope' after identity of N.L. man facing sex charges shielded

An unusual court case is playing out in the Newfoundland and Labrador Supreme Court, shown in St.John's on Friday, March 25, 2022. THE CANADIAN PRESS/Sarah Smellie

ST. JOHN'S, N.L. -

The case of a Newfoundland lawyer whose name remains shielded under a publication ban as he faces sexual assault charges has caught the attention of media law experts across the country.

Nancy Rubin, a lawyer and partner with Stewart McKelvey in Halifax, says publication bans protecting someone accused of sexual assault are extremely rare and usually granted only when revealing the identity of the accused would also identify the complainant.

"If this is granted by the court, then it creates a real slippery slope for any high-profile accused who claims that their reputation is going to be tarnished by being outed in a criminal charge," Rubin said in a recent interview.

The lawyer at the centre of the unusual case was charged last year with four counts of sexual assault and one count of sexual interference. The charges involve the same complainant, with one incident alleged to have occurred when she was 12, according to court documents.

The lawyer's defence team applied for a publication ban last July, and an interim ban was granted that month by provincial Supreme Court Justice Donald Burrage, who prohibited the publication of the lawyer's name or any details that may identify him.

CBC and CTV went to court to have the ban removed, and hearings were held on Feb. 24 and 25 of this year.

A month later, on March 25, provincial Supreme Court Justice James Adams ruled that the ban preventing publication of the lawyer's name should be lifted. But two days later, he granted a stay of that decision while the lawyer's defence team applies to have that ruling appealed with the Supreme Court of Canada. The ban remains in place.

Anyone can ask a judge to shield their identity from publication, Rubin noted, but few have the financial resources to hire a lawyer to argue on their behalf.

Adams released the reasons for his stay Wednesday, saying he agreed that the application for appeal would be rendered moot if the lawyer's name were published. He said he also agreed the case raises a "serious issue" that could be deemed by the Supreme Court of Canada to be of public interest and worthy of adjudication.

Rubin said that's unlikely. "When you're dealing specifically on a ban that's grounded in personal and professional reputation interests, or embarrassment, or loss of business, that's not enough," she said. "You could make that argument every time."

Iain MacKinnon, a lawyer with Toronto-based firm Linden & Associates, agrees the chances are slim that the country's highest court will hear the appeal. The Supreme Court of Canada accepts "less than 10 per cent" of the applications it receives for appeals, he said.

MacKinnon said he understands why the judge granted a stay on his own ruling, but he said he can't understand why an interim publication ban was granted in the first place.

He said the publication ban can't stay in place forever, adding that at some point, the public is going to find out who the lawyer is.

But in the meantime, the lawyer -- who was first charged in May of 2021 -- has bought himself many months of protection from public scrutiny, MacKinnon said, "which is a lot more than any other person charged with sexual assault, who almost never gets this kind of protection unless it's for purposes of protecting the victim."

MacKinnon, who sits on the board of the Canadian Media Lawyers Association, said he's planning to bring the case up with the group on Friday, as he feels media lawyers across the country should be watching.

This report by The Canadian Press was first published March 31, 2022.