Civil action vs. criminal proceedings

The following is not intended as legal advice. If you have been the victim of sexual abuse or sexual assault you should contact a lawyer experienced in this area to seek legal advice. My background and contact information can be found on the "About Me" page.


For ease of reference, I can be contacted at:


T: 416-363-1867, Ext. 225

E-mail: mwilchesky@rochongenova.com 

1) What is the difference between criminal proceedings and a civil action?

Remedies

The first thing to understand is that these proceedings are fundamentally different. A criminal proceeding involves the prosecution of the perpetrator of the assault by the government (i.e. the "Crown", in Ontario). The consequences to the perpetrator (i.e. the accused), if convicted of the offence, could involve, among other things, jail time, a "conditional sentence", a fine, various conditions such as a "no contact" order, an order that the perpetrator remain a certain distance away from the victim or children in general, an order that the perpetrator undergo DNA profile (to be listed in a law enforcement database), an order that the perpetrator be unable to use the internet and/or social media, an order that the perpetrator be listed the sex offender registry, etc.

One thing a criminal prosecution will not achieve is financial compensation for the victim. That is where a civil action comes into play. A civil action does not involve a governmental prosecution of the accused. Instead, a civil action is a legal proceeding between two (or more) individuals (or institutions). Generally, in the context of a civil sexual assault action, the survivor of the assault, who we call the "plaintiff" is suing the perpetrator of the assault (and potentially one or more institutions responsible for the assault), who we call the defendant(s), for monetary compensation. This means that the goal of the civil proceeding is to obtain payment by the defendant(s) to the plaintiff to financially compensate the plaintiff for the harms, injuries and other losses caused by the sexual assault. It is important to understand that just like the criminal proceeding cannot obtain financial compensation for the victim, the civil proceeding cannot obtain jail time (or the other remedies described in the preceding paragraph) against the defendant. I should note that in limited situations, there are certain other remedies a civil action can achieve, such as an injunction order preventing someone from posting sexual images of the other person on the internet, but the vast majority of claims are for financial compensation only.

Burden of proof

Another key difference between criminal and civil proceedings is called the "burden of proof". This refers to the standard that is required to convict the accused, in the case of criminal proceedings, or to find a defendant liable, i.e. responsible, in civil proceedings. In criminal proceedings, the burden of proof is "beyond a reasonable doubt". This means that the court cannot find an accused guilty of sexual assault (or other sexually-based offences) unless the prosecution proves its case (through witnesses and physical evidence, etc.) beyond a reasonable doubt. Or, another way, if the court has any reasonable doubt in the guilt of the accused, it must find the accused not guilty. This is, clearly, a very high burden of proof.

The burden of proof in a civil action is much lower. The burden of proof is described as a "balance of probabilities". This means that the plaintiff must prove that it is more likely than not that the assault/abuse occurred, and similarly, that it is more likely than not that the assault/abuse caused the harms claimed. The court can still have reasonable doubts concerning the case, but if it believes there is a 51% chance the assault/abuse occurred, the defendant is liable for the assault/abuse, and that the assault/abuse caused the harms claims, the plaintiff wins, and a monetary damages award will be made against the defendant(s) in favour of the plaintiff.

An important consequence of the distinction between these two burdens of proof is that one can still commence a civil action against the perpetrator of a sexual assault, and win, even if the perpetrator has been found not guilty in a criminal proceeding. 

2) Does it make sense for me to start a civil action for sexual assault against the person who assaulted me?

Potential clients are sometimes, understandably, conflicted about starting a civil action.  Each person is different and the decision to commence a civil action is very personal. Understanding what a civil action will entail, how long it will take, and your role in the process can help people come to an informed decision about how to proceed.

In addition to the monetary compensation one can achieve through the civil process, many clients often remark that an important consideration for them in commencing a civil action is/was accountability. Survivors want to hold their attackers responsible. Similarly, survivors often want to hold the institution(s) that ought to have protected/helped them or prevented/stopped the assaults/abuse responsible. Another major reason I often hear for commencing a civil action is to ensure the perpetrator (or other people within the institution(s)) is not able to assault/abuse anyone else. 

Additionally, one of the positive aspects of civil litigation (in my opinion) is that the defendant(s) MUST submit to an examination for discovery and a trial, if it comes to that, where they will be compelled to answer questions posed by plaintiff's counsel under oath. This is in stark contrast to the criminal proceedings, where the accused does not have to testify and can remain silent throughout the trial (and that cannot be used against the accused). Additionally, in criminal proceedings, the survivor is the complainant. He/she does not direct the proceedings and does not have any say over whether the Crown accepts a plea deal, or what the sentence will be for the accused. This is, of course, very different from civil proceedings, where the plaintiff is in control and directs the process.

Many clients have told me throughout the process, and/or once the case is resolved, that they find many of the steps of the litigation process therapeutic, cathartic and empowering. It can be very liberating to finally tell your story, confront your abuser, and have people listen to you and validate your experiences. Even just having a record of your story can be very important. And some people feel they can finally move on once they have dealt with this aspect of the abuse. There is always more work to be done, but many people feel that confronting their abuser in this way is an important part of their healing.


That said, civil litigation is not an easy process for plaintiffs to endure either. Because the plaintiff is claiming damages for pain and suffering related to psychological harms, and often loss of income damages, the plaintiff must produce a wealth of documents and information to the defendant perpetrator, such as their entire medical history and all their medical records, all their therapy records, all their education, employment and income records.

 

This is because the defendant is entitled to see how the plaintiff was doing before the assault and after the assault and what changed. This can be very intrusive for a plaintiff, especially the fact that the defendant who sexually assaulted them is going to get to see all this private information about them. And the defendant often doesn’t have to produce any of those things, because they are not claiming pain and suffering damages or loss of income damages. The plaintiff must also submit to an examination for discovery by defence counsel, where they must answer questions under oath, and testify at trial, if necessary. 


In my view, it is critically important for plaintiffs to understand what they are getting into before commencing a civil action. That said, I see my role as plaintiff's counsel to be one of guidance, advice, support and preparation. My goal is for my clients to feel supported, confident, informed and prepared, every step of the way. In my experience, plaintiffs become stronger and more confident as the litigation progresses. 


The major steps in a civil action for sexual abuse/assault are as follows:


1) Exchange of pleadings (including the Statement of Claim and Statement of Defence);

2) Exchange of affidavit of documents (i.e. producing all relevant documents to all Parties in the litigation);

3) Examinations for discovery (where each Party must answer questions posed by the other lawyers under oath);

4) Independent psychological/psychiatric assessments of the plaintiff (usually 2-4 days total)

5) Mediation (where we try to settle the action);

6) Pre-trial conference (if the action is not resolved at mediation, this is another attempt to settle the action or, at minimum, narrow down the issues for trial);

7) Trial (if necessary);

In my experience, it generally takes about 1-2 years to reach mediation, where many cases are resolved, or about 5-6 years to reach trial (if the case is not settled at mediation).

3) If the perpetrator has been charged criminally, can I still start a civil action? If so, when?

As indicated in the first section of this blog, a person can start a civil action even if a criminal prosecution has been commenced, or is pending. If a person wants to commence a civil action in these circumstances, the question becomes "When should a plaintiff commence the civil action?" 

There are a number of factors to consider in making this decision. 

One benefit of waiting until a criminal prosecution has concluded is that a criminal conviction can be used as conclusive evidence of the assaults (covered by the conviction) in civil actions. Conversely, a criminal "acquittal" is inadmissible in a civil proceeding.  Another benefit is that where there is already a criminal conviction against the perpetrator, the plaintiff can really on the Ontario Victims’ Bill of Rights in the civil action. This legislation sets out certain presumptions and rules that relate to civil proceedings when you sue the perpetrator of the assault who has been convicted. Some of those rules apply to everyone in the lawsuit, including institutions. For instance, there is an automatic presumption of harm from the assault and an automatic presumption that costs will be awarded on a higher scale ("substantial indemnity"). 

Despite these advantages, there are certain situations which make it beneficial (or necessary) for plaintiffs to commence actions before criminal proceedings are commenced or concluded. This is an important discussion to have with a lawyer before making a decision in this regard.


Conclusion


My goal in writing this blog post is to provide survivors of sexual assault/abuse with a helpful framework to think about some of these issues and to ground a productive discussion with an experienced lawyer in this area. It is not intended as legal advice and should not be relied upon in making legal decisions. If you have been sexually abused or assaulted, and are considering legal action, please contact a lawyer. My background and contact information can be found on the "About Me" page.


For ease of reference, I can be contacted at:


T: 416-363-1867, Ext. 225

E-mail: mwilchesky@rochongenova.com 

 


 


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