Men say lawsuit is a shakedown
Judge rejects bid to keep names confidential
Within days of the first reporting on the fascinating John Doe, Jim Doe versus Jane Roe case in Halifax, lawyer Mike Scott was fielding calls from a half-dozen nervous men in a similar situation.
Actually, it’s not a case — yet. It’s a threatened case.
Scott represents John Doe, one of two Halifax area businessmen who earlier this month went to Nova Scotia Supreme Court, seeking confidentiality orders that would have protected their identities if the lawsuits threatened by Roe materialize.
Basically, Scott said in a telephone interview Wednesday, the potential new cases “appear to be attempted extortions”, just as he and Jim Doe’s lawyer, Aileen Furey, told the judge was the situation with the Does — instances where, for instance, a woman let go from her job then warns the man that if he doesn’t pay up, she will either sue him for sexual harassment or make the matter public.
“It’s blackmail dressed up in the trappings of legal action,” Scott said, pointing out that all it costs to file a civil action, which is immediately then public information, is a couple of hundred bucks.
This is unlike criminal court, where at least in theory, allegations are tested first by a police investigation and then, depending on the practice of the province, sometimes also vetted by a Crown prosecutor — all this before charges are ever laid and the matter, including the identity of the accused person, becomes public.
But in practice, as the prosecution of Jian Ghomeshi showed, depending on the cultural pressures of the day, police may conduct softball questioning of complainants (that was certainly the case in the Ghomeshi investigation, where the "We believe victims” mantra had firmly taken root in the Toronto Police sexual assault office), which may render the theoretical protection moot.
Through their lawyers, John and Jim Doe said that the threats of civil action by Jane were accompanied by attempts at extortion.
The two men each admitted to having had first a business relationship with Jane, which in each case, they said, became a personal and intimate one.
Court documents quote a Facebook message from Jane to John Doe in August of 2014, several years after their relationship had ended, where she said, “This is a one-time request of $6,500 which you can consider a gift to me. I was hard hit financially by my marriage ending (that, other documents suggest, was in fact caused when Jane took up with a cocaine dealer and developed a serious addiction problem) and I knew I could turn to someone who shared a mutual understanding of what trust means.”
John Doe, the correspondence shows, replied by telling her he’d told his wife and family about the affair, showed them her message, and told her not to contact him again.
Jane replied that since he’d told his family, she would not longer keep the secret.
He then suggested to her that “extortion (is) a criminal offence,” whereupon she replied, in part, “Try ‘gift’, ‘mistress’ and ‘unfaithful’. A client/rep relationship could be construed as sexual harassment on your end. I had to live up to the expectations of my client.”
The client-made-me-havesex-with-you is surely a novel defence.
Jim Doe’s situation was more complex, it appears.
According to court documents, initially he was a customer of Jane’s company, but over time, “the relationship evolved to a stage where Jim Doe paid for and received sexual services from Ms. Roe. These facts are not in dispute.”
Supreme Court Judge Denise Boudreau dismissed the applications for confidentiality on July 5, pointing out that “There is no statement of claim before me. I don’t even have a draft statement of claim. I do not know the precise allegations by Jane Roe, if they are ever made. I don’t know the cause of action or tort.”
A little later in her halfhour oral decision, the judge said, “I have no way of knowing the truth of this matter.
“What I have is a letter to counsel from the person identified as Jane Roe” giving the Does “a choice: Face an action or settle the matter with her.
“With John Roe, there are also messages where there are requests for money, reminders of the relationship, comments as to not staying quiet.
“The applicants seem to believe this is strong evidence of extortion.
“But it remains an allegation, and a simple allegation, that they are making.”
She said the Does had failed to persuade her there was a significant public interest in keeping the men’s names confidential, and pointed out that if sheer embarrassment was the test, “all defendants might wish to keep allegations against them out of the public eye. But our system is based on openness and transparency.”
The judge said that while it is “trite to say that all persons facing civil actions or criminal prosecutions are all innocent at the start” and that “all defendants might feel as these applicants do”, the law is “quite clear those concerns in and of themselves are not enough to warrant limitations on our open courts.”
The men had also asked that any confidentiality granted them extend to any public statements Jane Roe might make to the media.
Her lawyer appeared in court to agree to both requests for confidentiality.
But the judge declined to grant the second one too, saying “it is not the court’s role to police media interviews.”
But as Scott said, by the time a civil or criminal trial has taken place, and an accused person vindicated, “It doesn’t matter whether we win. The damage is done.”
Jane Roe hasn’t yet filed a statement of claim.