Nfld. & Labrador

Justice minister says N.L. government will consider changing Jane Doe law for sex assault lawsuits

Justice Minister John Hogan says the provincial government will consider changing legislation so plaintiffs in sexual assault civil cases won’t have to undergo an assessment to keep their names under publication ban — although he couldn't say how long the process would take.

Legislation change would need to involve a 'broader conversation,' says John Hogan

Justice Minister John Hogan says his department will look into changing legislation so plaintiffs in sexual assault civil lawsuits won't have to undergo an assessment to determine if having their identities exposed in court would cause them psychological harm. (Mark Quinn/CBC)

Justice Minister John Hogan says the provincial government will consider changing legislation so plaintiffs in sexual assault civil cases won't have to undergo an assessment to keep their names under a publication ban — although he couldn't say how long that process would take.

"We don't want individuals, and I guess I'll say women mostly, to have to go through a process that makes it worse for them, that retraumatizes them and makes it very difficult to go through the court process," he said.

Plaintiffs in sex assault lawsuits in Newfoundland and Labrador are required to undergo an assessment by a sexual abuse expert to determine if having their identities exposed in court would cause them psychological harm. 

On Thursday, St. John's lawyer Lynn Moore told CBC News plaintiffs have to recount details of alleged assaults as part of that assessment — a process that can resurface the trauma they experienced.

Moore said she's been asking government officials for years to change the requirement so plaintiffs don't have to undergo the assessment but nothing has been done. 

Moore is currently representing eight women in a civil suit against the provincial government over allegations they were sexually assaulted by on-duty police officers. She said she asked for the assessment requirement — which she refers to as a Jane Doe order — to be changed again for this lawsuit, but government counsel wouldn't budge.

"I wrote to their counsel and I said, 'Come to court with me [and agree] that you think it's harmful for women who've been sexually assaulted to have their names made public,'" she said. 

"They came back to me: 'no.' That's the answer. 'No, we're not doing it.'"

On Monday, Hogan wouldn't comment on the lawsuit against the provincial government, but did say it isn't up to government counsel to agree to such a change.

"Lawyers at the Department of Justice and Public Safety can only and should only follow the rules as they exist right now," he said. 

The open-court principle

The open-court principle, which dictates that court proceedings should be open to the public, is one of the main hurdles preventing legislative change. While a publication ban is automatic in criminal sexual assault cases due to federal legislation, the rule isn't automatic in civil court.

Hogan said his department will look into changing the requirement but changing the legislation would involve a "broader conversation" with groups like the Law Society of Newfoundland and Labrador and the Canadian Bar Association. 

Helen Conway Ottenheimer is the Progressive Conservative justice critic. (Mark Quinn/CBC)

Hogan couldn't say how long it would take for any legislative changes to materialize, and Progressive Conservative justice critic Helen Conway Ottenheimer criticized the wait.

"Lynn Moore has been advocating for changes for a long time with government, and yet we don't see any action on that," she said.

Conway Ottenheimer said the rule requiring plaintiffs in sexual assault lawsuits to undergo the assessment is "fraught with many problems."

"It not only revictimizes them, and it's very traumatic for them to have to go through that extra step before they even get to the courts, [but] it also, I think, has a chilling effect in terms of … other women that may want to come forward," she said.

Read more from CBC Newfoundland and Labrador

With files from Malone Mullin and Mark Quinn

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