This morning it was reported that the Minister of Justice, the Honourable John Hogan, Q.C., will consider changing the process by which survivors of sexual abuse may proceed with their civil cases using a pseudonym. [link: https://www.cbc.ca/news/canada/newfoundland-labrador/sex-assault-legislation-nl-1.6447165]
At the beginning of their case, many of our clients choose to pursue what we call a “pseudonym order”; an order of the Court that permits the plaintiff to pursue their civil case using the name “Jane Doe” or “John Doe” instead of their real name.
Given the highly sensitive nature of these cases, many of our clients have expressed that they would not be in a position to seek justice but for the option to do so using a pseudonym.
The Supreme Court of Newfoundland and Labrador, General Division. has recognized this potential “chilling effect” on survivors seeking civil justice if they are forced to do so using their true name. In the course of considering several pseudonym applications, brought by Budden & Associates, the Honourable Justice Butler stated that:
“I accept that it can be inferred that there is inevitable harm to victims of sexual, physical and emotional abuse in general (and not just young persons) as well as to the administration of justice should such victims decline to report such abuse and/or decline to take steps to protect themselves because of a risk from future harm from public disclosure.”
Jane Doe v Newfoundland and Labrador, 2015 NLTD(G) 151, para 39.
However, there is a strong presumption in Canada called the “open court principle”, tied to the s. 2(b) Charter right to freedom of expression and freedom of the press, which dictates that our courts should, to the extent possible, be open and available to the public. This is an important consideration that competes with the critically important privacy rights of survivors of sexual abuse.
Because of this strong presumption, in Newfoundland and Labrador, survivors are presently required to submit evidence to the court that the release of their true name in their case would be harmful to them.
The proof of this harm often comes in the form of a report and affidavit from a professional, such as a doctor, psychologist, psychiatrist, or counsellor who can attest to the harm that might befall the survivor if their true name was known and publicized in connection with their case.
As noted by Justice Butler in the Jane Doe decision, argued by Will Hiscock and Paul Kennedy of Budden & Associates, the evidence to be presented is not “boilerplate”, and is a nuanced consideration of each survivor’s individual circumstance, supported by the Court’s inference of the inherent harm to survivors in this context.
Jane Doe v Newfoundland and Labrador, 2015 NLTD(G) 151, paras 25 & 39.
Once this evidence has been provided, the Court engages in a balancing exercise, weighing the privacy interest of the survivor against the open court principle. Where an order is granted, the process is designed to infringe upon the open court principle to the minimal extent possible. For example, media are permitted to report on the details of the case, but cannot identify the survivor by name. Media are further given at least five days’ notice that such an application is taking place in case they wish to appear before the Court and make submissions.
While seeking a pseudonym order is an important step to protect our clients, it can also be harmful to them. They are required, at a very early stage of difficult litigation, to recount painful memories to prove that they ought to be allowed to pursue their case using a pseudonym. This is further complicated by the fact that a survivor may not have previously disclosed their abuse to their care professionals, and so are required to make such a disclosure for the first time.
It is open to the province to introduce legislation which alters this procedure and grants anonymity to survivors automatically, akin to the current criminal law procedure. While any such legislation would have to respect the open court principle, it could be shaped using some of the same nuance in the current procedure, with points of intervention for the media and public in cases where it is warranted.
Given the consistent way in which our courts have acknowledged the burden on survivors forced to use their true names, and have granted pseudonym orders accordingly, the legislation contemplated by the Minister would be a great step forward in reducing unnecessary harm to survivors seeking justice.
- Allison Conway
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