Re­venge porn case, new twist

On­tario judge awards woman $142,000 in law­suit

The Hamilton Spectator - - COMMENT - CATHER­INE PORTER

How much is a life­time of pub­lic hu­mil­i­a­tion worth?

On­tario Su­pe­rior Court Jus­tice David Stin­son pegged it at pre­cisely $141,708.03 in Jan­uary. That’s how much he ruled a young man had to pay his ex-girl­friend for the shame and psy­cho­log­i­cal suf­fer­ing he’d caused her by post­ing an in­ti­mate video of her on porn­hub.com.

He called it “col­lege girl plea­sures her­self for ex-boyfriends de­light.” That will give you an idea of its con­tents. The de­ci­sion set a new path for re­venge porn vic­tims. Since 2014, when Par­lia­ment passed the re­venge porn law, vic­tims can go to po­lice and hope the jerk who put their im­ages on­line with­out their per­mis­sion lands in jail. But with Stin­son’s rul­ing, they could also pur­sue some civil jus­tice — cash, and a lot of it. He set the bar high, award­ing the young vic­tim the max­i­mum dam­ages — enough to pay her lawyer, and cover ther­apy bills for years of shame, fear, dis­trust …

Stin­son lauded the young woman for her brav­ery in break­ing new le­gal ground. “Her ef­forts,” the fi­nal line of his judg­ment reads, “have es­tab­lished such a prece­dent that will en­able oth­ers who en­dure the same ex­pe­ri­ence to seek sim­i­lar re­course.” He com­pared her or­deal to that of a sex­ual as­sault vic­tim.

Women ap­plauded in their hearts across the coun­try. Ex­cept the vic­tim­izer wants a do-over. This week, the de­fen­dant’s lawyer Dhiren Cho­han was in Su­pe­rior Court ask­ing for Stin­son’s rul­ing to be “put aside.” I can’t tell you what was said, since the judge put a pub­li­ca­tion ban on the hear­ing. But I can tell you what Cho­han ar­gued in his fac­tum: his client, known only as N.D., wasn’t rep­re­sented in the hear­ing be­cause he couldn’t af­ford a lawyer back then and filed his mo­tion im­prop­erly, so he didn’t know when it was. He has a full-time job now, and has been able to hire coun­sel, so he’d like the chance to de­fend him­self.

It’s a prece­dent-set­ting case and “de­ci­sions of this mag­ni­tude ought not to be made with­out the par­tic­i­pa­tion of all the par­ties,” Cho­han’s fac­tum states.

How can the court even con­sider this, seven months af­ter Stin­son’s rul­ing? I’ll get to that in a minute. First, let me tell you about the case.

The girl, known only as Jane Doe, was 18. She came from a small On­tario city. She had a high school sweet­heart. They broke up the sum­mer af­ter Grade 12, but kept a ro­man­tic flicker go­ing. She went away to univer­sity, and he sent her some “sex­u­ally ex­plicit im­ages of him­self.”

She re­turned the favour, and sent him a video in Novem­ber 2011. She found out he’d posted it on the porn web­site three weeks later, con­tacted his mother (can you imag­ine that con­ver­sa­tion?) and he pulled the video down.

Then the smart girl lawyered up. She hired Donna Wil­son, who sent a let­ter to her ex de­mand­ing $17,500 in dam­ages. Over the next three and a half years, he ne­go­ti­ated, dis­cussed and stalled. They reached a set­tle­ment twice, and he backed off twice. He hired a lawyer and then lost that lawyer. Fi­nally, Wil­son sent him no­tice that she was tak­ing him to court.

He did not file a mo­tion of de­fence, so his side was not heard by Jus­tice Stin­son.

It would ap­pear he blew it. But if he can prove to the court he has a good ex­cuse and an ar­guable case, then he might just get to “set aside” the rul­ing and start again.

“Judges are loath to deny de­fen­dants the abil­ity to de­fend them­selves,” ex­plains civil lit­i­ga­tor Gil­lian Hnatiw.

A rul­ing to re­open the case would clearly be ter­ri­ble for Jane Doe, who is still a stu­dent. This night­mare has dragged on for four and a half years. An­other hear­ing would stir up her vic­tim­hood. In his fac­tum, Cho­han states he’d like to cross-ex­am­ine her on whether she “suf­fered a vis­i­ble and prov­able in­jury.” She also hasn’t been ques­tioned on the stand on whether she and her ex had an agree­ment that he wouldn’t show the video to any­one else and he there­fore breached her con­fi­dence, the fac­tum states.

How can she move on and start her life again?

The spill-out for the rest of us raises a big­ger ques­tion. If Stin­son’s land­mark case opened doors to civil lit­i­ga­tion, won’t set­ting it aside lock them shut again?

I called three lawyers. They all said even if Stin­son’s rul­ing is “put aside,” it re­mains case law for lawyers in the fu­ture to draw on.

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