Thoughts from our team
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:
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 monetarize 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.