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Sexual Assault Cases (Ontario)

Sexual assault cases are tricky.

Not because the sexual assault itself didn’t happen.

Not because the Plaintiff hasn’t been very seriously hurt and seriously impacted by the sexual assault.

Sexual assault cases are tricky because they can take so much out of the Plaintiff him/herself.

For starters, it’s really hard to step forward, and to take that first step in reporting the sexual assault. That takes serious strength and courage to do. Many victims of sexual assault don’t step forward at all. Or if they do, it takes years and years for them to gather the strength and courage to do so. It’s hard to put yourself out there, and be vulnerable.

That’s why when someone takes the brave step of reaching out and calling our law firm to report and wanting to pursue a sexual assault case, we know that this decision was not made lightly. It may have taken hours, days or perhaps years for that person to make the call to one of our lawyers.

Sexual assault cases are tricky for other reasons.

The same way that our lawyers believe everything that our clients, and prospective clients have to say about how the sexual assault took place, and how it impacted them. The same cannot be true of the Defendant.

These cases literally turn in to a “he said” vs. “she said” battle.

This can be incredibly frustrating, not to mention humiliating and deflating to a Plaintiff. It’s quite literally a gas lighting defence of the events which took place. For most people, this is very difficult to deal with. And I don’t blame them one bit.

Very few Defendants ever admit that the sexual assault ever took place, or went down the way the Plaintiff says it went down. The Defendant will force the Plaintiff to prove every little detail as the case progresses. This can be very hard, not to mention emotionally taxing on a Plaintiff.

Sexual assault cases are deeply personal, and emotional. And how could they not be? The action of a sexual assault is a very severe infringement and violation of a person’s body, mind and soul. It’s a very harmful, and intentional act which cannot be taken back. That violation quite often stays with the person for the rest of his/her life. There are no magic pills to make the pain, memories or trauma go away. Once it’s there, it’s often there for good. Picking up the pieces and putting one self back together takes a lot of work. Sometimes, no matter how much work one puts in, the pain remains.

The civil standard for proving a sexual assault is much lower than the criminal standard. In a criminal sexual assault case, the Crown has to show that the assault was guilty beyond a reasonable doubt. Proving a case beyond a reasonable doubt is a very high threshold. Think of it as establishing a 100%-99.9999% certainty that the accused did it. The civil standard is beyond a balance of probabilities. A balance of probabilities is a much lower standard than that of a reasonable doubt. Think of it as a 50% +1 certainty that the Defendant committed the act and caused damage.London-Head-Shot-Brian-Goldfinger-201x300

It’s for these reasons that sometimes a case can fail at the criminal level, but succeed at the civil level. The Crown at the criminal trial may not have been able to established beyond a reasonable doubt that the accused is guilty. But, for the purposes of the civil trial, the Plaintiff is able to establish on a balance of probabilities that the Defendant committed the sexual assault, and caused damage. So, a Plaintiff may “win” in one case (the civil case), but “loose” on the criminal level. While a Plaintiff never really loses in a criminal case, it just means that the accused got off the criminal charges; which can certainly feel like a loss to the person who was sexually assaulted.

I think there is a changing maxim around sexual assault cases. Before 2019 or so, it was frowned upon if a Plaintiff advanced a sexual assault claim in civil Court, but did not report the sexual assault to the police; or there was no criminal investigation or proceeding into the sexual assault. Defence lawyers would make the argument that the Plaintiff was greedy, or only in it for the money because s/he did not report the assault to the police.

I think there has been a change of tone given how the police; and Courts have handled sexual assault investigations and cases. These case take years, and often the complainant is abused (for a second time) on the stand. It seems like the victim of the sexual assault is on trial when it should be the other way around. The sexual assault victim has little control over the process. In the majority of cases the Crown will have to call the complainant as a witness; which will open up him/her to intense cross examination. Nobody wants that.

With a civil proceeding, the Plaintiff has a bit more control over the pace of the case, and the litigation process. It’s his/her case to shepherd through the Courts. Not everything has to be public. The discovery process does not take place in an open Courtroom. The case can settle behind closed doors at any step before the litigation has commenced; or during the litigation. There are no reporters waiting for you outside of the Courtroom to snap pictures of you. No harmful comments from internet trolls about the merits of one’s case which they know little about. Sounds much better than being propped in the public as a Crown witness for everyone to see.

Let’s be very clear. Civil remedies are different than criminal remedies. Nobody is going to jail at the end of a civil trial. A criminal sexual assault case is vastly different. If the charges are proven against an accused beyond a reasonable doubt, then the accused can very well go to jail for a long time (or short time depending on the charges/sentence). A person who has been sexually assaulted needs to consider what their goals are, and what their tolerance is for not only litigation, but the stress of putting themselves out there. It’s not an easy decision. But, if all goes well, justice will be served in one form or another. I supposed that then ultimate “win” is seeing the accused spend time behind bars, while at the same time paying out on a civil Judgment to a deserving Plaintiff.

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