Privacy In Civil Sexual Assault Cases

• Published date: 17 August 2021
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Privacy, Privacy Protection, Personal Injury, Crime
• Law Firm: Torkin Manes LLP
• Author: Ms Loretta Merritt

Privacy is often, but not always, a concern to plaintiffs in civil sexual assault cases. This article will discuss keeping the plaintiff's identity confidential as well as production of confidential records. The law treats sexual assault survivors' privacy very differently in criminal and civil cases.

In criminal cases involving sexual assault (particularly historical cases), Crown Attorneys usually seek and obtain publication bans preventing everyone from publishing any information which would identify the complainant. In civil cases, plaintiffs sometimes wish to keep their identity confidential and proceed using a pseudonym. It is up to the plaintiff to decide if they want to proceed anonymously. In my experience generally defendants do not object to this procedure, particularly institutional defendants such as churches, school boards, children's aid societies, etc. However, if the issue is contested, ultimately the court will decide whether the plaintiff can proceed using a Jane/John Doe pseudonym. Factors the court will consider include whether there has been a publication ban in a related criminal proceeding, whether the case has already received media attention, whether the case may be a matter of interest to the media, whether the identity of the plaintiff is a matter of public interest, whether the plaintiff or other sexual abuse survivors will be deterred from reporting abuse if they are publicly scrutinized, whether the plaintiff will suffer psychological harm if their identity is not kept confidential and whether the defendant will suffer any prejudice as a result. When a motion is brought, there is a Practice Direction in Ontario requiring that the media be put on notice of the motion. I have never had a case where the media responded or tried to participate in a pseudonym motion where we were simply trying to keep the plaintiff's identity confidential (as opposed to sealing the entire court file).

In October, 2020 the Nova Scotia Court of Appeal¹ decided a case involving a Confidentiality order (pseudonym motion) in a civil sexual assault case. In that case, a publication ban had been issued in a related criminal proceeding. In the subsequent civil case the judge gave the plaintiff (who sought to protect her privacy) a Confidentially Order allowing her to keep her identity confidential. On appeal, the court said that a confidentiality order was not necessary because the complainant was already protected by the pre-existing criminal...