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Canadian Law on Sexual Assault

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Canadian Law on Sexual Assault


You have a choice, you can have your assailant charged criminally, and/or you can bring a civil suit against your assailant. Most survivors don't realize that you can sue your assailant for a monetary reward in civil court.



CIVIL


Making the Decision:

Unlike in a criminal case, where the police decide whether to lay charges and prosecute the offender, in a civil case, the plaintiff decides whether to sue the offender and can stop the lawsuit at any time.

Beginning a lawsuit against the offender is not an easy decision to make. The following are some of the many considerations to take into account before you make the decision to sue the perpetrator:

  • Suing may help you regain a sense of power and control, which may aid in healing.
  • You will have to relive and retell the incident. For some this will be a healing process, for others, it will elicit painful memories.
  • It will cost time and money. A civil case can take years to reach resolution.
  • It may be a very frustrating experience given the length of time and complexities of a civil lawsuit.
  • There may be a requirement that your confidential medical and counseling records be disclosed to the perpetrator; a horrible invasion of privacy for some survivors.
  • The perpetrator may counterclaim against you as a defence or intimidation tactic. Often, the counterclaim will involve allegations of defamation and this may possible result in you paying damages to the perpetrator if you fail in convincing a judge or jury that the sexual assault(s) took place.
  • It is likely that you will have to undergo various medical and psychological assessments. Some will be by doctors chosen by your lawyer and some will be by doctors chosen by the lawyer for the defendant.
  • Will the perpetrator be able to pay? Even if you have a good case and are successful, the perpetrator may not have any money or assets to satisfy a judgement.




What to Expect:

Your lawyer will need to know as much as possible about what happened and the ongoing effects of the sexual assault. Most lawyers who have experience in this area understand that it is an extremely difficult process for you, will want to make you feel comfortable before beginning the questioning and will try to take it at your pace. You may meet with the lawyer a few times before they begin to ask you detailed questions about the incident.

After the initial interview(s) and collection of information, there is usually a process of investigation (i.e., collection of medical or other records and legal research). When enough information is collected, the lawyer usually sends what is called a >demand letter= to the person(s) that you will be suing (the defendants). What happens next mainly depends on how the defendants respond to the demand letter. Negotiations may be entered into in an attempt to settle the matter. During negotiations, the defence will likely require some medical or psychological information from you to assess everything from credibility to how deeply the sexual assault has affected you. Depending bon the situation, you may settle the file at this stage.

However, in most cases, the file is not settled after writing a demand letter. Likely, either you will have no response from the defendants or negotiations with them will break down. At that time, it becomes necessary to issue a Statement of Claim. This is the first official court document which begins the actual court case. It is a statement that sets out what you want and why you want it. The claim first goes to the court and then it is served on all the defendants. They then have a period of time (usually twenty days) to respond to the claim by what is called a Statement of Defence. This document sets out their defences to your claim.

The next step is to exchange documents in what is called an Affidavit of Documents. Any documents that you or your lawyer have that relate to the matters in issue in the lawsuit must be disclosed to the defendants unless there is some legal reason to withhold those documents. For instance, communication between you and your lawyer can be withheld. Some medical or therapeutic records can be withheld depending on the circumstances. However, most relevant therapeutic records will have to be disclosed at some point to the defendants.

The next major step in your lawsuit is the Examination for Discovery. This is an official court proceeding that takes place in the office of the Official Examiner. You are asked to take an oath to tell the truth and then the lawyer for the defendant asks you questions. The defendant will not be present at the examination. Generally the questions are far ranging and deal with how you were before the sexual assault, detailed questions about the actual sexual assault and questions about how you have been since. Most people find the examination for discovery very difficult and sometimes intimidating because you have to answer all these very personal questions in front of people you do not know. Your lawyer will be there with you and will stop the other lawyer from asking any legally improper questions. Hopefully, if you have an experienced lawyer he or she will have spent a considerable amount of time preparing you for the examination and helping you understand the process. The examination is your chance to show the defendant=s lawyer just who you are and how the sexual assaults have affected you. It is your chance to show the defendant=s lawyer that as a result of the actions of his or her client, you are suffering and you deserve compensation.

Your lawyer will also have the opportunity to examine the defendant. At the defendant's examination, your lawyer will sk questions about your assailant's background and what happened. Your lawyer will try to prove that the sexual assault did happen and to establish that the defendant is legally responsible for those assaults. It is the chance for your lawyer to pick away at their case and to establish how strong your case is.

After the examinations for discovery, many cases settle. This is because both sides have had an opportunity to assess the strength and weakness of their own case and that of their opponent. Sometimes, the examination for discovery leads to another period of collecting more information and investigation.

At some point, either before or after the examinations for discovery, you will likely be sent to various medical or psychological experts for assessments. Your lawyer will arrange some of these assessments so that the expert can provide a medical-legal report or an impact assessment. Generally, your lawyer choose doctors or therapists who have experience dealing with sexual assault survivors and who can give an opinion that is credible in court. It is often based on this report that your lawyer is able to give you a better opinion as to how strong your case is.

At least one of the assessments will be with a doctor or therapist chosen by the lawyer for the defendant. That doctor or therapist will give a report to the defendant's lawyer and it will generally not be as positive as the reports that your lawyer receives. You can expect the defence report to highlight how well you are doing and minimize the damage the sexual assault has done to you.

In some cases, both sides will want to go to mediation to try to settle the matter. Mediation is usually not an official court process but it often achieves settlement. If both sides want to mediate, then it is likely that your case will settle at mediation. Generally, a mediator with experience in sexual assault matters is chosen and both lawyers prepare a written outline of their theory of what happened and the kind of compensation that is reasonable in the circumstances. Generally, your lawyer will likely begin the mediation by explaining what happened and how it has affected you, then outline the amount of compensation that you are seeking. The lawyer for the defendant will then outline their defence and why you should not receive any or much compensation. Often, there is a period of back and forth at the mediation between the lawyers and the mediator. In most mediations, the parties are then separated and the mediator visits each one separately to discuss their strengths and weaknesses and give an opinion as to the amount of compensation that may be reasonable. Through this process many cases settle. Mediation can occur at any time during your case, even before the examination for discovery and sometimes, even before you issue the statement of claim. If mediation fails the first time, there can be another one before the actual trial.

Most cases settle before the trial. Sometimes they settle as late as the day before the trial. If your case has not settled and you have to go through a trial you can expect to be the first witness. Your lawyer will have prepared you for the kinds of questions he or she will be asking and for the kinds of questions you will be asked by the other lawyer. Testifying can be a difficult experience and it is normal for you to be nervous. But, it is also your opportunity to tell your story. Other witnesses, including any medical or therapeutic experts, then testify. The judge or jury will then decide whether or not you are entitled to receive monetary compensation.


My assailant was found not guilty, can I still sue?

Yes. For some survivors, a civil lawsuit may be the only way of obtaining a remedy if the police decide not to charge the perpetrator or if the criminal trial results in a not guilty verdict. You can still commence a civil lawsuit and even be successful even if the criminal courts found the assailant not guilty. To convict in criminal courts, the accused must be found guilty beyond a reasonable doubt - a very high standard. To find liability in the civil courts, the defendant must be liable "on a balance of probabilities", which is a much lower standard. Success in a civil lawsuit will not put the offender in jail, but will result in a monetary award for damages that you have suffered.


Who To Sue:

In addition to the assailant, someone else may be legally responsible for the actions of the perpetrator. If so, you may be able to sue that third party. There may be instances where someone else such as the employer of the perpetrator or some governmental agency can be held legally responsible for the sexual assault. For instance, if the perpetrator was working as a supervisor/councillor at a children=s home and sexually assaulted children at that home, the employer he worked for could be held legally responsible. Each situation is different and whether you can sue someone other than the perpetrator depends on your individual situation.


Time Limitations:

Most provinces have a Statute of Limitations, which imposes time limits within which you have to begin your lawsuit. If you don't start the action within those specified time limits you must have a valid legal reason why you did not.