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What the Civil Law Can Offer Sexual Abuse Survivors - And What It Can’t

Thoughts in response to Sandy Garossino regarding the Jian Ghomeshi cases

Sandy Garossino, a former Crown Prosecutor, writes insightfully on Canadian politics, law and society and has provided some of the best analysis of what she has called the “Ghomeshi Gong Show”. I have re-posted several of her pieces on Facebook and Twitter. She has, in particular, written about what Civil Courts have to offer sexual assault survivors (following her heading “what if complainants could change the game?”).

I have, since the 1990’s, focused my law practice on the representation of survivors of sexual abuse in claims for financial compensation. I’ve represented, or co-represented, hundreds of survivors of childhood abuse at the hands of clerics, teachers, doctors, social workers and other authority figures. I’m thus interested in what Ms. Garossino has to say.

What she gets right is that the playing field in a civil trial is relatively level because, unlike a criminal trial, the defendant must give evidence. He can be forced to answer questions about the assaults, and to produce emails and other documents. The plaintiff may choose to be present while this interrogation takes place; literally, can be sitting across a boardroom table from the abuser.

There are drawbacks, however, and not only the “catch” that Ms. Garossino identifies (“civil lawsuits are the playground of the rich”). That access to justice issue can sometimes be overcome, as I’ll explain below, by the lawyer working on a contingency fee arrangement. 

Other problems, as I see them, would be the absence in civil law of certain protections for survivors; protections which, ironically, have mostly been present in the criminal process for decades. These include: 

  • In the criminal process, sexual assault complainants are guaranteed anonymity. To identify a complainant in the media or elsewhere (unless, as with Lucy DeCoutere, this anonymity is waived), would be a criminal offence. No such protections are guaranteed in the civil process. In Newfoundland and Labrador, a specific court order is required to commence a civil claim using a pseudonym. This court order requires confirmation from a medical or mental health professional that for the Plaintiff to be publicly identified would be actually harmful to her or him and not simply embarrassing. Here is a link to a recent case from our firm which shows how such an order is obtained.
     
  • The criminal process further protects the complainant’s privacy by, in almost all cases, putting their sexual history, third party communications and medical/counseling records off-limits to the Defence. There are no civil equivalents of rape shield laws or O’Connor Applications. Instead, the Defendant routinely gets disclosure of this extremely private information and can cross-examine the survivor on it. 
     
  • In a criminal trial, the accused, even if self-representing, cannot personally cross-examine the complainant; this must be done through a lawyer. The civil process is different. You may, as a complainant, be sitting across that same boardroom table being grilled about the assault itself, your counselling history and much else by the very person who abused you.

Additionally:

  • Most of the civil process is private and, by what is called the “implied undertaking” rule, must stay private. You cannot post the transcript of the discovery examination of your abuser on Facebook, or even really discuss it there. You cannot bring it to the police as “evidence” of the crimes against you. Generally, only the trial itself is public.
     
  • The criminal process is slow, but the civil process is sometimes slower still. While many claims are able to be concluded within a year or two, others inevitably will take longer. Those cases which proceed all the way to a full trial may take a number of years to resolve. 
     
  • The criminal process, if it ends in a conviction, will see your abuser disgraced, ruined and locked up in a cage, where he will be further brutalized. The civil process, if successful, will result in a financial award which will be difficult, if not impossible, to collect (pension income, matrimonial property and certain other categories of assets will generally be beyond your reach). The satisfaction of the judgement in your favour against the accused may be the only satisfaction you will get.

For these, and other reasons, I generally advise my clients against suing a perpetrator personally and will only in the rarest of instances agree to do so on a contingency fee basis.

I’m certain that Ms. Garossino is aware of all of these challenges. What she envisions, I believe, is a restorative justice system that uses our present civil law as a point of departure. I’m supportive and interested. It just isn’t the system that we, at least here in Newfoundland and Labrador, presently have.    

What our present civil law system sometimes can offer survivors is financial compensation. This is, as discussed above, rarely a possibility in claims launched solely against the perpetrator. 

Abusers, however, often misuse the respectability and access offered by their positions within organizations and institutions (such as by being foster parents, teachers or clerics) to do their harm and these organizations and institutions can, in many cases, be held responsible for the misdeeds of their employees and associates. 

That is where a lawyer, such as myself, enters the picture and, if such “deep pocket” institutional defendants exist, legal expertise will be available on a contingency fee basis (meaning that the lawyer doesn’t charge for fees and expenses until the claim is resolved and then takes an agreed-on percentage of the award for the legal fee).

Sexual assault is an insult to, and a violation of, the integrity of the survivor that is not only devastating in and of itself, but also in many cases adversely impacts the survivor’s ability to attend school; work; enjoy a full emotional and family life; or to otherwise fulfill his or her personal and economic potential. 

What Canadian civil law does do, reasonably well, is recognize this harm and monetize these losses. Many organizations and their insurers do have the means to fund settlements and to satisfy Court Judgements. 

They sometimes also will offer unconditional apologies. This may or may not be what particular survivors of sexual abuse are seeking but it can be another option for meaningful redress.
 

- Geoff Budden

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