Defendant in revenge porn case is seeking a do-over

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. It is not being appealed, pointed out Hnatiw, who regularly represents sexual assault victims in civil court. (She also provided pro bono counsel to Lucy DeCoutere in the recent criminal case against Jian Ghomeshi.)

“I don’t want women to feel disempowered,” she said. “Obviously, it’s discouraging. But it remains a good law.”

The bigger concern, said privacy lawyer and Osgoode Hall law professor Michael Power, is a new case with much lower damages. Most judgments in his field are just $20,000 — not enough to even pay legal bills, he said.

“It could reduce the incentive for people victimized by revenge porn to seek legal redress,” he said.

Finally, there’s an implicit warning: this legal case will be like that video, never disappearing.

Privacy litigator Molly Reynolds, who was part of the team representing former justice Lori Douglas in her own case dealing with revenge porn, said for many victims it’s not money that counts.

“Just the ability to seek vindication from the court that there was wrongdoing,” she said. “That’s as important, if not more, than the financial compensation, in the end.”

So, again: how much is a lifetime of public humiliation worth? Catherine Porter can be reached at cporter@thestar.ca.

A ruling to reopen the case would clearly be terrible for Jane Doe, who is still a student