Six dollars can buy you a latte, an hour of parking on Burrard Street, or copies of someone’s social, medical, and financial records.
Many people aren’t aware of court services online, and even fewer use it. But those who do, including lawyers, the media, and prospective employers, know that one is able to do a deep dive into the private lives of their fellow taxpayers with the click of a button.
Most named parties are unbothered by this potential for exposure, because most claims do not relate to one or more of the worst moments in their lives. For survivors of sexual assault however, bringing a claim risks exposing extremely sensitive information to public view. This exposure can revictimize, retraumatize, and potentially dissuade survivors from asserting their rights.
Luckily, certain interlocutory remedies are being granted by Canadian courts with a greater frequency.
Presently, survivors of sexual assault have three main remedies available to them to help preserve their privacy in their civil action:
1. Anonymization orders;
2. Publication bans; and
3. Sealing orders.
Each remedy progressively restricts the public’s access to information, and claimants may apply for any combination of the above to suit their individual needs.
Anonymization Orders
Anonymization orders allow survivors to proceed with their claim using initials in the place of their name. For example, “Jane Doe v. John Smith” could become “A.B. v John Smith” for the purposes of litigation, which can often be sufficient to prevent the curious from finding the survivor’s court file.
Publication Bans
Publication bans can be tailored to suit the discrete needs of a given claim, but these bans typically prevent the publication and dissemination of any information that could identify the survivor. This remedy can supress not only ill-intentioned gossips, but in high-profile sexual misconduct cases, can prevent the media from using their platforms to improperly scrutinize and stigmatize survivors on a national stage.
Sealing Orders
Sealing orders are the most restrictive of the three remedies. Sealing orders “seal” some or all documents in a court file from not only public access, but access by any non-party individuals or entities. This can mean that only the court, the lawyers for the parties, and the parties themselves can access the sealed documents.
These remedies are often in place until the commencement or close of trial. After a trial decision has been rendered, if liability is not established, either party may apply to have the restrictions removed.
Ancillary Benefits
In recent years, our courts have not only recognized the barriers faced by survivors of sexual assault, but have granted survivors access to the aforementioned solutions. While these solutions allow for the proper administration of justice for current litigants, deterrence is arguably the most significant byproduct.
The anonymization process encourages claims that would not have been filed but for the protections afforded to claimants via anonymization. Meanwhile, with each published decision, would-be abusers must now, with a greater frequency than ever, consider the real and tangible risk of legal and pecuniary ramifications. They can no longer rely on the weapon of social stigmatization to publicly shame their victims into silence. Instead, they must make a choice: permanently retire the notion of harming human beings, or answer to their peers and the public in open court.
Note: This article does not contain legal advice. If you would like advice on your legal matter, please contact Inlet Law at 604 39-INLET (604 394-6538) or at hello@inletlaw.ca