Publication ban removed on name of sex offender

An Edmonton judge has agreed to overturn a publication ban she granted on the name of a convicted sexual offender after a challenge from three media organizations.

On Tuesday, Court of Queen’s Bench Justice Susan Bercov reversed her earlier decision in the case of Alyssa Tungul, a former Edmonton Catholic Schools music teacher who Bercov convicted of sexual assault and sexual interference.

Tungul was found guilty in July of sexual assaulting and sexually interfering with a 15-year-old boy who was previously her student. Tungul, on the other hand, testified she was in fact the victim, and that the student forced himself on her then blackmailed her into silence.

At the conclusion of the trial, Bercov granted a publication ban on Tungul’s identity under section 486.4 of the Criminal Code — which confers anonymity on the identities of sexual assault complainants. The section is intended to encourage reporting of sexual offences by removing the fear of publicity.

On Tuesday, however, Bercov found she had misapplied the section, noting her initial interpretation could have unintended consequences.

“I agree with the media that protecting the identify of an accused who alleges sexual assault as a defence at a trial does not further the purpose of the legislation,” she said.

Bercov said this is the first case she’s heard of in which a court has had to decide whether to impose a publication ban on the name of an accused who claimed they themselves were sexually assaulted by their complainant.

In Canada, the names of almost all complainants in cases involving sexual offences are subject to publication bans. The names of accused people are usually

public, unless revealing their name would identify the complainant, usually through a family relationship. There is no such relation in Tungul’s case.

Tungul claimed the student sexually assaulted her, including in her cousin’s basement, and by forcing her to perform oral sex on him. Bercov ultimately made no findings as to whether the sexual assault alleged by Tungul occurred, but did conclude Tungul had not adequately established the defence of duress.

Bercov found both Tungul and the student had issues with credibility. She acquitted Tungul of one of the three counts she faced.

The applicants seeking to overturn the ban on Tungul’s identity were Postmedia, owner of the Edmonton Journal and Edmonton Sun, as well as CBC and CTV News.

Lawyer Tess Layton argued that victims of sexual offences might be less motivated to report knowing the identity of the person they are accusing will be protected if they simply allege they themselves were the victim.

She noted the ban on Tungul’s name was imposed without reasons or notice to the media.

“Allowing accused persons to take the benefit of Section 486.4, a provision designed to protect the interests of the accused’s victim(s), will only serve to encourage accused persons to make allegations of sexual assault against their accusers so that they may be ‘anonymized’ in what would otherwise be a process of open justice,” she wrote.

“The knowledge that accused sexual offenders can be statutorily shielded from public accountability will irreparably damage the confidence and willingness of complainants to bring forward allegations of sexual assault.”

Bercov ultimately agreed with the media’s argument and vacated the ban. The identity of the victim remains protected.

The Crown also agreed with the media’s submissions. Tungul’s defence lawyer took no position.

Tungul’s sentencing hearing is set for Nov. 12.