Lerners LLP: Elizabeth Grace
Criminal v. civil: how the criminal process can impact a parallel civil process
The wrong that constitutes a sexual offence is invariably also actionable before the civil courts. As a civil litigator who both advances and defends civil actions based on sexual misconduct, I often encounter cases where there is or may be an overlap between the criminal and civil justice systems. I believe it behooves both the criminal and the civil bar to have a basic understanding of how proceedings in one forum may affect those in the other, as this can influence the advice we give clients and the strategies we adopt for advancing clients’ interests. This article is intended as a primer for criminal lawyers on how the criminal can impact a civil process.
“NEED TO KNOWS” ABOUT THE CIVIL JUSTICE SYSTEM
In my experience, there are three basic points that arise regularly in the civil sexual assault context that few lawyers, both civil and criminal, seem to appreciate. I will start by addressing these points.
The first relates to limitation period defences. These are time periods prescribed by statute by which one must sue in order to be entitled to compensation. If one is too late and misses a limitation period, one will be barred from bringing a civil claim for compensation, regardless of the merits of case. While limitation periods are a fundamental feature of our civil system, and certainly one that causes plaintiff lawyers no end of worry and grief, they are not a relevant consideration in sexual assault cases.
The Ontario Legislature in 2016 dispensed with all limitation periods for sexual assault, no matter when, in what circumstances, or by whom it is alleged the sexual assault was committed.1 In fact, the explicit absence of any time-bar in which to sue has been expanded in Ontario beyond “sexual assault” (i.e., where there has been actual physical contact of a sexual nature) to “any other misconduct of a sexual nature” if it involved a minor or occurred in a relationship of inequality or dependency. Online sexualized stalking and harassment would be an example of such “other misconduct”. In Ontario, there is also now no limitation period for physical assault where the alleged victim was a minor at the time or it occurred in a domestic or dependent context. Other provinces have enacted, or are in the process of enacting, similar legislative exemptions for limitation periods in sexual assault cases.2 In other words, after years of labouring under restrictive and often uncertain legal rules about when it was too late to sue, the field is now virtually wide open for victims of sexual and physical abuse to sue for compensation.
Second, there is legislation in Ontario, not generally well known by the judiciary or the bar, that provides for a direct right of civil compensation against those convicted of sexual offences. The Ontario Victims’ Bill of Rights states that a person convicted of one of a prescribed list of crimes of violence against persons “is liable in damages to the victim of crime for emotional distress and bodily harm” that has occurred as a result.3 Essentially, this means it is not a matter of whether convicted offenders will have to pay compensation for their wrongdoing, but how much they will have to pay.
Ontario’s Victims’ Bill of Rights goes on to describe how, for certain crimes including sexual and domestic assault, there is a legal presumption of having suffered emotional distress.4 In other words, the onus is on the convicted offender to disprove emotional harm, and not on the victim to prove it. Practically speaking, however, victims are much better off leading evidence to prove the nature and extent of their emotional and other harms if they want to maximize their compensation, and this is generally what happens in a civil sexual assault case. The Victims’ Bill of Rights contains additional provisions that operate to the financial disadvantage of those convicted of sexual and other offences who are subsequently named as defendants in civil suits. This includes a higher (i.e., punitive) rate of recovery of legal costs for the victim than is the norm.5
Third, impecuniosity and declaring bankruptcy will not allow someone who is found civilly liable for sexual assault to avoid having to pay a civil judgment for monetary damages. This means that having no money to pay compensation for reasons that may include that the convicted offender spent all his money on his criminal defence, will not save the offender (or his estate) from eventually having to satisfy the judgment. This is because the federal Bankruptcy and Insolvency Act provides for an exception to the general rule that an order for discharge releases a bankrupt from all previous debts. Where the debt arises from a civil court’s award for damages based on “bodily harm intentionally inflicted, or sexual assault”, the debt survives discharge.6
In short, declaring bankruptcy will not be the “quick fix” or “escape” many assume. The reality is that there is no easy way to escape the obligation to satisfy a judgment debt arising from sexual assault. This judgment quite literally follows the person against whom it is made for life, surviving bankruptcy, and even extending beyond life to become a debt of the offender’s estate.
TIMING IMPLICATIONS FOR THE IMPACT OF CRIMINAL ON CIVIL PROCEEDINGS
The timing of proceedings is critical to understanding a criminal case’s potential impact, or lack thereof, on a civil proceeding. The two most common scenarios are: (i) where the criminal proceeding concludes first and results either in a conviction or an acquittal, and then is followed by a civil suit, and (ii) where criminal and civil proceedings run in tandem. I will deal with each of these situations.
The starting point is the Criminal Code which provides that “[n]o civil remedy for an act or omission is suspended or affected by reason that the act or omission is a criminal offence”.7 Although there seems to be widespread belief to the contrary – i.e., that a criminal proceeding where liberty is at stake necessarily takes precedence over a civil one which is “only about money” – in fact, a criminal case has very little legal impact on a civil case. The exception is where it has resulted in a conviction, in which case its impact is huge and operates to the detriment of the offender. That being said, a criminal case’s practical impact can be significant regardless of its outcome and timing, and it will often influence the course of action taken, both by those who have committed and those who have been subject to alleged sexual assault, and by bystander parties who are often pulled into a lawsuit as parties to it.
(a) Impact of Prior Conviction
Civil lawyers acting for victims of sexual assault always welcome criminal convictions. This is because convictions serve to take one big issue “off the table” – namely, that actionable misconduct occurred. If the offender (or his estate) is a defendant in the lawsuit or intended lawsuit, his conviction all but guarantees he will be liable to his victim for damages. The remaining areas of contention then become whether others who may directly or indirectly have facilitated the sexual assault, such as an employer, are also liable, and how much compensation (i.e., damages) the victim should receive. Sometimes there is also a question, especially where a conviction is based on a plea bargain, as to whether more or worse wrongs were committed than what formed the basis of the conviction and the resulting sentence. If so, these are matters that will have to be litigated in the civil context, but because the backdrop will be one of at least some misconduct having been previously admitted to or found beyond a reasonable doubt to have occurred, the offender will usually be at a disadvantage in defending himself.
A recent decision granting summary judgment against the offender demonstrates this.8 There, the civil court concluded that even though the accused person had been charged with sexual assault but pleaded guilty only to assault and was convicted only of assault, the agreed facts on which his conviction was based clearly evidenced a sexual assault. Indeed, as the convicted offender was a lawyer and his victim his client, the civil court relied on the facts read into evidence by the Crown to find that the lawyer had committed not only a sexual battery, but also breached his fiduciary duty to his client.
The impact of a criminal conviction is specifically addressed in statute. Provincial and territorial Evidence Acts speak to the admissibility and effect of a criminal conviction. The Ontario Evidence Act, for example, provides that proof of a conviction is proof that a crime was committed (so long as it was not successfully appealed, and the time for appeal has expired).9 Importantly, this applies whether or not the convicted person is actually a named defendant in the action, meaning the conviction operates as proof there was wrongdoing even against non-offending defendants to a civil suit.10 Civil lawsuits for sexual assault often name more than just the alleged offender as a defendant. Non-offending persons, like a spouse, an employer, a religious or voluntary organization to which the offender belonged, or the owner of property where the assaults occurred, will often be named as co-defendants with the offender and sometimes will even be sued without the offender being named in the suit, such as where the offender cannot be found, is long deceased, or his presence simply will not add anything of value to the case. Because of the force that a conviction has in a factually overlapping later civil proceeding, the plaintiff in a lawsuit may decide not to wait for trial to obtain a ruling on liability, preferring instead to move for summary judgment on liability to gain an upper hand.11
Basically then, a conviction gives rise to a legal presumption of wrongdoing which, unless rebutted with evidence, is conclusive against all affected parties in a civil suit. The provincial and territorial Evidence Acts do open the door, albeit narrowly, for defendants in civil suits to re-litigate a prior conviction. Thus, the Ontario Evidence Act states that “in the absence of evidence to the contrary”, proof of a conviction in Canada is proof that the crime was committed.12 Much ink has been spilled by courts on when a defendant will be permitted to adduce “evidence to the contrary”. The leading case on point, which arose out of sexual misconduct in the employment sphere, is Toronto v. CUPE.13 There, the Supreme Court of Canada makes it clear that re-litigation of the facts essential to a conviction will only be allowed in very limited circumstances. The court noted we cannot have a legal system that implies that re-litigation will yield a better, more accurate result, or that allows scarce resources of courts, litigants and witnesses to be wasted on a second proceeding that may reach the same conclusion as the first, or that tolerates inconsistencies between decisions and lack of finality, except where to do so advances the administration of justice. The doctrine of abuse of process, which aims to protect the integrity of the justice system as a whole, is the mechanism by which the courts police attempts to re-litigate criminal convictions.
Under this doctrine, the onus is on the convicted party, or the non-offending defendant in the civil suit who seeks to challenge the wrongdoing that the conviction represents, to prove that re-litigation would prevent a potential miscarriage of justice. Examples of when a litigant will be permitted to challenge a prior conviction include: (i) if it can be shown the first proceeding was tainted by fraud or dishonesty, (ii) if fresh evidence not previously available conclusively “impeaches” the original result, (iii) if the issues in the two proceedings are sufficiently different, and (iv) if “fairness” dictates that the criminal result should not be binding in the subsequent civil case. The courts have suggested that the “fairness” exception may be triggered where there was not an adequate incentive to defend in the first proceeding (as the Supreme Court put it, “the stakes were too minor to generate a full and robust defence”),14 or where there was a lack of effective legal representation in the criminal proceeding.15
Perhaps not surprisingly, the effect of Toronto v. CUPE has been to preclude virtually any re-litigation in subsequent civil lawsuits of the essential facts underlying previous criminal convictions. As a result, what criminal defence lawyers need to know is that if their clients are convicted of a sexual offence, those clients should expect to be sued for damages at some point in their future. Even after they die, their estates may be subject to claims arising from sexual misconduct.16
(b) Impact of Prior Acquittal
An acquittal is not necessarily the good news one might assume when it comes to facing a subsequent civil lawsuit. This is the case both from a liability and from a damages perspective.
Unlike convictions, acquittals have no beneficial legal effect on liability in a subsequent civil proceeding that is based on the same alleged wrongdoing that resulted in the acquittal. I often rely on the highly publicized case from the United States of football player O. J. Simpson as a shorthand way to illustrate how this can be: we all know that even though O. J. was acquitted in a criminal court of murdering his wife, the family of his deceased wife established in civil court that he was liable in damages for killing her. The reason for this apparent discrepancy is twofold. First, an acquittal is a statement not of innocence or that no offence was committed, but rather of reasonable doubt as to whether that offence was committed. Second, the standard of proof in a civil case is lower than in a criminal case – proof on a balance of probabilities, or 51% or greater probability it happened, can often be established where proof beyond a reasonable doubt cannot. As M. Rosenberg J.A. observed in one of the leading cases in this area that arose from allegations by a patient of being sexually abused by a hospital nurse:
A finding in the civil case that the defendant probably committed the criminal act of which he or she was acquitted does not undermine the credibility of a system that found there was a reasonable doubt. Thus, it is not a question of whether re-litigation has led to a more accurate result; the system contemplates that different results are possible because of the different burdens of proof.17
Civil courts have taken a hard line on the legal effect of acquittals, finding they are generally irrelevant to a civil suit for damages based on the same alleged misconduct and, therefore, are inadmissible.18 The Ontario Court of Appeal confirmed this is the case even where a criminal trial judge gave reasons for acquittal that expressed an opinion that no wrongdoing had occurred, as opposed to simply concluding there was a reasonable doubt as to whether an offence was committed.19 This is because it is the verdict, not the reasons, that is relevant when determining the legal effect of an acquittal on a subsequent civil proceeding.20
This is not to say, however, that an acquittal does not have practical implications for a subsequent civil suit. It does. Obviously, if the complainant or another important Crown witness was discredited, or other significant problems with the Crown’s case emerged during the course of the criminal proceedings that contributed to the acquittal, then as a practical matter, the acquittal is going to impact a later civil proceeding. It would be folly to think otherwise. Thus, unless the problems that came to light through the criminal case can be overcome, and remember that in a civil case, the alleged offender is compellable and the alleged victim has party standing and, so, is able to exercise direct control over the case to be advanced, it is unlikely a subsequent civil suit will be brought, or if brought be successful.
From a damages perspective, an acquittal is a negative factor for the alleged offender who is sued civilly. While the civil justice system is geared to compensation, not punishment, it does allow for punitive damages where a defendant’s misconduct is so bad it warrants condemnation and deterrence. It should come as no surprise, therefore, that punitive damages are, unlike in most other areas of civil litigation, a common feature in civil sexual abuse cases. However, where an alleged offender was already convicted for his wrongdoing, it is very unlikely a civil court will deem it necessary to further “punish” him through an award for punitive damages as doing so could amount to “double punishment” for the same wrongdoing.21 The converse is true for the acquitted defendant who is subsequently found civilly liable. The court will likely view this person as having escaped punishment and will be more inclined to add to the compensation award an amount for punitive damages to reflect, in effect, a civil “fine”.22
CONCURRENT PROCEEDINGS: “STAYING” THE CIVIL IN FAVOUR OF THE CRIMINAL
Although this is something I as civil counsel try to avoid for a variety of reasons, what sometimes happens is that criminal and civil proceedings end up running in tandem. In this situation, it is a common misperception that the criminal trumps the civil. The Criminal Code is unequivocal: there is no automatic suspension or deferral of the civil in favour of the criminal.23 Nonetheless, civil courts do retain the discretion to stay a civil action pending disposition of an ongoing parallel criminal proceeding, and will do so in exceptional or extraordinary circumstances where there is a real risk that the right to a fair criminal trial will be seriously prejudiced by the continuation of the civil case.
The biggest concern criminal defence lawyers tend to have with a parallel civil process is that their client, the alleged offender, is compellable. Indeed, as part of the civil pre-trial discovery process, an alleged offender will have to produce all relevant, non-privileged documents in his possession, power or control and to submit to an oral examination under oath. In my experience, Crown attorneys are often also uncomfortable when there is an ongoing parallel civil proceeding and would be much happier to see it delayed until after the criminal case has been concluded. The Crown’s concern usually centers around the possibility that the evidence will be tainted, or perceived as tainted, thereby undermining the chances for a conviction in an otherwise meritorious case.
The leading case on a stay of a civil action in favour of a criminal proceeding remains Gillis v. Eagleson.24 This was one of those very rare cases where a stay of the civil suit was actually ordered. In other words, exceptional circumstances were found to justify this unusual step. Here, discredited hockey legend Alan Eagleson was the subject of criminal charges in the United States, and therefore, lacked the Charter protections afforded to him if he had been charged in Canada. These protections include the right against self-incrimination and to derivative use immunity, grounded in sections 13 and 7 of the Charter, respectively. However, in Gillis v. Eagleson, the stay of the civil suit was ordered on terms designed to safeguard the plaintiff’s rights – i.e., that in exchange for a deferral of the civil case against him, Eagleson would have to pay into court $40,000 (in 1995, U.S. dollars). This was to address the concern that his assets might otherwise be depleted in the course of him defending himself criminally.
When one considers how the principles in Gillis v. Eagleson, a case that had nothing to do with sexual assault, have been applied in the sexual abuse context, it is clear courts have taken a dim view of impeding in any way the progress of a civil suit, and will do so only in the rarest of circumstances. This is because a stay in a civil proceeding is an extraordinary remedy amounting to an injunction. While potential prejudice to the accused person will obviously feature large given that liberty is at stake, the prejudice to the alleged victim who has a right to seek compensation through the civil courts will not be lightly discounted.
The case of Belanger v. Caughell illustrates how reluctant the courts are to stay a civil suit in favour of a criminal proceeding.25 There, a doctor had been charged with aggravated sexual assault based on the same facts in contention in the ongoing civil proceeding. The doctor moved for a stay of the civil process on the basis that being compelled to answer questions in the civil discovery process would make his defence known to his accuser before she had to give her evidence in the criminal proceeding. The doctor further argued that as credibility would be the fundamental issue at his criminal trial, his right to a fair criminal trial would be compromised. The court hearing the stay motion was not swayed by these arguments, noting that section 7 of the Charter does not entitle an accused person to the most favourable procedures, but only to ones that are consistent with the principles of the fundamental justice. The court concluded that the protections afforded to the doctor under the Charter were sufficient, and declined to order a stay.
My experience is that those on the criminal side tend to view the civil justice system with, at best, suspicion and distrust, and at worst, contempt. It strikes me that these sentiments are often driven by misperceptions and inadequate knowledge of how the other system actually works. Understanding the actual legal repercussions, or lack thereof, of one type of proceeding on another is, in my view, an essential step to formulating effective legal and practical strategies for advancing clients’ interests, whichever side of the case one is on.
Elizabeth Grace is a partner in the Toronto office of Lerners LLP and the co-author of the book, Civil Liability for Sexual Abuse and Violence in Canada (Toronto: Butterworths, 2000).
The author thanks articling student Noorain Shethwala for her research contribution to this paper, which ensured that the most authoritative and up to date sources were relied upon.
1Bill 132, officially known as the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), received Royal Assent on March 8, 2016. Among other things, it introduced sweeping amendments to the provisions of the Ontario Limitations Act, 2002, S.O. 2002, c. 24, Sch. B which addressed claims based on sexual and physical assault.
2For example, in Manitoba an action may be commenced at any time if the assault was sexual, or at the time of a physical assault, the person with the claim was in a relationship of intimacy with the person alleged to have committed the assault, or otherwise dependent on that person: The Limitation of Actions Act, C.P.S.M., c. L150. Nova Scotia recently amended its legislation to similarly exempt a claim “based on misconduct of a sexual nature” and a physical assault claim where there was a relationship of intimacy or dependency from any limitation period: Limitation of Actions Act, SNS 2014, c. 35. Alberta is currently in the process of revamping its legislation to retroactively remove any limitation period for claims of sexual assault, sexual misconduct (including stalking or sending inappropriate text messages or photos), and physical assault on minors, dependents and partners: see “Alberta to End Time Limit on Civil Suits Around Sexual or Domestic Violence”, the Canadian Press, March 7, 2017.
3Victims’ Bill of Rights, 1995, S.O. 1995, c. 6, s. 3(1).
4Ibid, s. 3(2).
5Ibid, s. 4.
6Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 178(1)(a.1)(i).
7Criminal Code, R.S.C. 1985, c. C-46, s. 11.
8B.(R.) v. S.(E.) (Litigation guardian of), 2017 ONSC 7866.
9Evidence Act, R.S.O. 1990, c. E. 23, s. 22.1(1).
10Ibid, s. 22.1(2).
11See, for example, F.(K.) v. White  O.J. No.847 (CA), and more recently, B.(R.) v. S.(E.), supra, where the court not only granted summary judgment on liability but also on damages.
12Evidence Act, R.S.O. 1990, c. E. 23, s. 22.1(1).
13Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63. Also see Hanna v. Abbott, 219 O.A.C. 73, and for a helpful articulation of the principles in the previous two decisions, Bank of Montreal v. Woldegabriel,  O.J. No. 1305 (S.C.J.).
14Toronto v. C.U.P.E., supra, at ¶53.
15Hanna v. Abbott, supra, at ¶32.
16Until recently, it was understood that one could not sue the estate of a deceased person more than two years after death. However, a recent Ontario decision has thrown that assumption into question for sexual assault cases, suggesting that because of the distinctive way sexual assault is treated in the Ontario Limitations Act, a lawsuit could actually be brought at any time after death: Fox v. Narine, 2016 ONSC 6499. See my blog, “Court’s Interpretation of ‘Limitations Act’ May Remove Limits for Pursuing Sexual Assaults Cases Long After a Death”, December 2016.
17Polgrain Estate v. Toronto East General Hospital, 2008 ONCA 427 at ¶24.
18Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 4 ed (Markham: LexisNexis Canada, 2014), ¶19.188.
19Polgrain v. Toronto East General Hospital, supra.
20Ibid. M. Rosenberg J.A. referred to policy considerations for why reasons for acquittal are not relevant in a subsequent civil proceeding. These include not only that the complainant has no avenue as a non-party to the criminal proceeding to appeal or otherwise review a criminal judge’s reasons, but also that even the Crown’s right of appeal lies only against the verdict and not the trial judge’s reasons.
21Indeed, Ontario’s Victims’ Bill of Rights, supra, s. 4(4) mandates a judge to take any criminal sentence imposed on a convicted person into consideration before ordering that person to pay punitive damages to his victim.
22E. Grace and S. Vella, Civil Liability for Sexual Abuse and Violence in Canada (Toronto: Butterworths 2000), pp. 213-217.
23Criminal Code, supra, s. 11.
24(1995), 37 C.P.C. (3d) 252 (Ont. Gen. Div.).
25(1995), 22 O.R. (3d) 741 (Gen. Div.).