There are some interesting legal issues that arise for sexual
abuse survivors when there are related criminal and civil
proceedings. Most times, when a criminal case is brought first and
a conviction obtained, the law works in favour of abuse survivors.
See for example my July 2014 article Concurrent Criminal and Civil Cases: Making the
Most of Evidence and my October 2014 article Legal Proceedings: Civil or Criminal?
Recently, the Nova Scotia Court of Appeal decided a case regarding
publication bans which may present good news for many abuse
survivors, but may leave some sexual abuse survivors unhappy with
the result.
In United Kingdom of Great Britain and Northern Ireland
(Attorney General ) v. L.A. The plaintiff/complainant was
sexually assaulted by members of Great Britain's Royal Navy
hockey team while they were in Nova Scotia. There was a criminal
prosecution regarding sexual assault and the complainant
subsequently started a civil lawsuit based on the assaults. In the
criminal case there was a publication ban ordered under section
486.4 of the Criminal Code prohibiting
publication of any information that could identify the complainant.
In the civil case she brought a motion for a similar order
permitting her to use a pseudonym in place of her real legal name
in the litigation and providing that her identity not be published
or broadcast. The motions judge found that publication bans
are necessary to ensure access to justice for victims of sexual
assault because survivors may be harmed or dissuaded from coming
forward if they do not have privacy.
The Appeal Court said that a confidentiality order was not
necessary in the civil lawsuit because of the protection afforded
by the criminal publication ban. The court said that when
information in a civil case can identify the complainant from the
criminal case, the criminal publication ban prevents its
publication in the civil case.
The effect of the decision is that if the civil case will identify
the plaintiff as having been a complainant in a criminal case where
there was a publication ban then he or she cannot be identified in
the civil case and a further order of the civil court is not
necessary. This is good news for abuse survivors who want to
maintain anonymity in the subsequent civil lawsuit. On the other
hand, it may present an unintended obstacle for survivors who do
not wish to keep their identities a secret and may want to fully
share their experiences with the world. There are many reasons why
a survivor may wish to be publicly identified including encouraging
others to come forward.
In criminal cases it is almost always the Crown Attorney who
decides whether to seek a publication ban. Even complainants who
want to speak out and be identified may nevertheless find
themselves silenced. As was pointed out in an article published in
the Advocates Journal, (Winter 2016) written by Justin Safenyi the
publication ban scheme under the Criminal Code presents two
significant difficulties. First, if the Crown applies for a ban,
the court must grant the order if the legal test is met. There is
no discretion. Under the law, the views of the complainant whose
identity is the subject of the ban are irrelevant. Prosecutors need
not consult with, or even advise complainants before applying for
the ban, much less obtain their consent. The second problem is that
a publication ban cannot be revoked or varied by a complainant.
Publication bans are indefinite in duration and therefore a
complainant who wishes to be identified must ask the Crown to
arrange for the publication ban to be lifted.
In L.A. the Nova Scotia Court of
Appeal has extended the Crown's ultimate control over the
complainant's ability to have his or her identity published
through to the subsequent civil lawsuit. Over the last 25 years or
so I have represented hundreds of sexual abuse survivors in civil
lawsuits. Many of them wish to remain anonymous and a significant
number do not. One thing I know for sure is that sexual abuse
survivors want to be empowered not rendered powerless to make
important decisions regarding their legal rights. In my view this
case is a step backward. No court or Crown Attorney (or anyone else
for that matter) has a right to tell an abuse survivor what is best
for him or her.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.