Why civil suits can be better for victims
In harassment cases, women have more control
When people recall Jian Ghomeshi’s c r i minal t r i al s , one poignant recollection is how the accusers’ credibility was attacked on the witness stand. Given the criminal process they chose, that was as simple as shooting fish in a barrel. I remember instead the one victim, Kathryn Borel, who knew what she was doing. She sidestepped the criminal process with a plea bargain and then walked immediately to the courthouse steps to deliver a broadside denunciation, accusing Ghomeshi of verbal and sexual assaults, of chronically abusing his power and of “violating her in ways that violate the law.”
As I noted at the time, “Borel has all but openly invited Ghomeshi to sue her ( for defamation). If he doesn’t, people will draw the obvious conclusion. But if he does, he will lose all the courtroom protections of the criminal process and face instead the balanced ones of a civil court case where a judge must decide what happened, not whether a delineated criminal offence is made out ‘ beyond any reasonable doubt.’ ”
My office is representing the four women who are suing Albert Schultz and Soulpepper Theatre. These women got it right.
It is not merely that they will receive potentially significant financial compensation for their treatment but that, at every step of the way, the process will favour them in a way that Canada’s criminal process never could.
There are many differences between suing for sexual harassment or assault and charging the predator criminally. Every one of those differences dramatically favours the victim. ❚ They have t hei r o wn counsel, who is obliged to follow their instructions. By contrast, Crown attorneys never represent the victims but the state — and are permitted to drop the case, trade it away or handle it in a manner antithetical to the victims’ interests. ❚ Ghomeshi never took the witness stand and avoid- ed cross- examination. He would have no such luck if he were sued civilly. In a lawsuit for harassment, the victim has an absolute right to have the defendants cross- examined under oath ( at an examination for discovery) and then can use any admissions at the later trial. As a result of this early cross- examination, unlike Ghomeshi’s accusers who looked like deer in the headlights on the witness stand when confronted with longforgotten emails, accusers in a civil case will never be surprised at trial in that way. ❚ Not only can the victims cross- examine the defendants they are suing but those defendants must hand over all relevant emails and other documentation before this cross- examination occurs. Unlike the Ghomeshi case, in a civil trial it would be impossible for the women to be confronted with any such emails that they had not been able to prepare for with their lawyers. ❚ Civil litigants control their own process. They can decide when to sue, when to have discovery, when to go to mediation and whether they wish to settle or go to trial. If they decide to settle, it could be for money, a public apology or anything else they devise. Accusers in a criminal process have no control whatsoever. They often don’t even have access to the Crown prosecutor who, as a matter of law, represents only the state. ❚ It is dramatically easier to win. They need merely convince a judge, or jury if they choose, that it is more likely than not that they were harassed or assaulted in the manner they claim. The accused does not get off merely because there is a reasonable doubt. The judge or jury decides whose version is more believable and that party wins. ❚ A successful criminal verdict results in nothing for the accusers beyond vindication. A successful lawsuit for sexual harassment can result in an award of hundreds of thousands of dollars. If the court decides t hat t hat is i nsufficient punishment, punitive damages can also be awarded, which also go to the victim. There are legal fees but contingency arrangements can usually be worked out.
After the Soulpepper example, why would any victim of sexual predation go the criminal route again? For that matter, why would anyone who is wronged?