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Civil cases for sexual harassment — a new avenue for women seeking justice?

For survivors of abuse who feel the criminal justice system is failing them, the civil courts may offer hope. But what are the key differences?
Plaintiffs, from left, Diana Bentley, Hannah Miller, Kristin Booth and Patricia Fagan attend a press conference after filing lawsuits alleging sexual harassment by Soulpepper Theatre Company director Albert Schultz. (Christopher Katsarov/Canadian Press)
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What does justice look like?

Last week, four women filed civil claims against Soulpepper Theatre company and its founding artistic director Albert Schultz, alleging unwanted sexual touching and harassment. None of the claims has been proven in court.

In a statement, their lawyer Alexi Wood said her clients had chosen a civil claim over criminal proceedings, as it "gives them the control that was taken from them by the years of abuse."

Simona Jellinek, a Toronto lawyer who represents sexual assault complainants in civil court, says the option has always been available, but was previously subject to certain limitations.

This changed last year when the Ontario government removed limitations on suing, including time-sensitive ones. Previously, allegations that dated back years or decades might not reach court.

"Most people do not come forward immediately" she says. "Most people need a little bit of time, if not a lot of time… to have the courage to come forward."

Why a civil claim, instead of criminal court?

There are several differences between a civil and criminal case.

In a civil case, Jellinek tells The Current's Anna Maria Tremonti, the client is a party to the action, so they have certain rights and a greater degree of control.

This is in contrast with criminal cases, where the decision to proceed rests with the Crown, with "little if any deference given to the person who was actually hurt," she explains.

Accusers make their case to media in emotional news conference 4:39

Another major difference Jellinek notes is that in a civil case, the defendant can be compelled to testify, with their version of events undergoing cross-examination.

"You have a much better understanding of the full story, not simply one side of the story," Jellinek says. "That's a big reason as to why the civil system in these kinds of cases is often preferable."

How civil court can provide big picture

David Butt, a Toronto-based criminal lawyer, points out that a civil case also allows complainants to submit a fuller picture of events, especially in cases where the harassment may not be in the form of sexual touching.

"There may be inappropriate sexualization of conversations. Sex-based [or] undue exercise of power. Those things are not covered by the criminal code definition of sexual assault, but they may be very much a pattern of predatory behaviour that creates the intolerable situation for the victim or survivor," he notes.

The civil route can also lead to a change in the culture of a workplace, Jellinek argues, because institutions can also be sued and held to account.

Access to justice

Farrah Khan, the sexual violence support and education manager at Ryerson University, believes that high-profile cases raise awareness of the options available to survivors.

"Often we hear survivors say: 'I didn't know I could pursue that option, I didn't know I could ask for that," she says.

'I was being groomed to think that this was all normal, that this was all what I had to do to work in the theatre, to be an ingénue in the theatre meant you were sexualized continually,' Plaintiff Kristin Booth told The Current, Jan 4. (Christopher Katsarov/Canadian Press)

The financial restitution of a civil case also offers survivors the space to heal, she notes, and regain some of what was lost.

"It's not just a career," she says. "It's sometimes losing your time in your education. It's losing time with family... also the amount of money that you have to pay to heal because not everybody has access to free counselling."

What does justice look like for you? What do you need to go forward, to feel safer, to feel heard?- Farrah  Khan

But while Khan says it's "exciting" to see this conversation happening, she says it's just as important to talk about justice in general, and who has access to it.

"We know that people of colour, Indigenous folks, black folks speak about the fact that they don't have the same access to justice and so when we talk about criminal and civil ... who gets to be believed, even, is important to discuss."

In her work with survivors, she says people often have only the criminal-courtroom idea of what justice can mean.

"That's the number one question we always ask: what does justice look like for you? What do you need to go forward, to feel safer, to feel heard?"

For survivors, she says that justice often doesn't mean seeing someone go to jail.

"I've been in spaces where survivors have been given the option of a settlement, or facing the person who has caused them harm in court, and what they've said is: 'I want to face them, and tell them what they did, and show them, and name what is not okay."

Listen to the full conversation near the top of this post.


This segment was produced by The Current's Yamri Tadesse.