8 March 2023
Sexual Assault and Right To Privacy
This article is part of a series of educational blog posts created by a team of Watson Goepel women lawyers in light of International Women’s Day 2023, to empower, celebrate, and encourage women in Canada.
Women continue to be statistically at a far greater risk of sexual violence in Canada. The Canadian Women’s Foundation summarizes statistics of gender-based violence in Canada. 30% of women aged 15 or older report experiencing sexual assault at least once. The rate of sexual assault against indigenous women is three times higher than among non-indigenous women.
Most survivors of sexual violence will never interact with the legal system. Only 5% of sexual assaults are reported to police and it is the most underreported criminal offence in Canada, according to a review of studies compiled by the Justice Department of the Federal Government in 2019.
There continues to be significant shame and stigma surrounding reporting sex-based crimes. In the criminal justice system, the crown prosecutors must prove that the sexual assault occurred “beyond a reasonable doubt”, a high burden. On the other hand, the civil justice system requires that the plaintiff (survivor) prove that the assault occurred “on a balance of probabilities,” a much lower threshold. As a result, women have been increasingly turning to the civil courts for accountability and compensation for injuries and damages which occur in relation to a number of violations including sexual assault, breaches of privacy, cyberbullying, sexual harassment and ‘revenge porn.’
Navigating the civil judicial system can be intimidating. Many survivors fear having their names made public, which can deter them from seeking redress. The court system does however have processes for protecting the identity of the survivor, or plaintiff. Through specific application processes one can apply to the court for “confidentiality orders” which include publication bans, sealing orders and anonymizing orders. An anonymizing order allows the plaintiff to be referred to throughout the legal process in all public documents by only their initials (or simply letters such as A. B.) and can require redaction of any other identifying features (address, personal descriptors, place of employment). Sealing orders can require certain aspects of the case be sealed from public view entirely such as affidavits containing financial information or the names of minor children or witnesses who may be involved. The defendant will know who the plaintiff is, but this information is not public. Publication bans can further limit the ability of the press to report on the facts so as to protect the plaintiff.
Although an open and transparent judiciary is a fundamental principle of our legal and democratic system in Canada these orders recognize the need to protect survivors who come forward to seek justice through the judicial system. The aim is to provide privacy, protect from possible physical harm, and limit further trauma.
This notion is summarized in C.W. v. L.G.M., 2004 BCSC 1499 at paragraph 26:
 I am of the opinion that there is a superordinate social value or public interest in protecting victims of sexual abuse from further injury. Victims of sexual abuse should not be deterred from seeking compensation in the court because the process will cause further harm. I am of the view that plaintiffs who claim damages for sexual abuse are entitled to orders protecting their anonymity during the pre-trial process if they establish that: (a) public exposure in the very process by which they seek compensation from the perpetrator of the abuse will cause additional harm; (b) permitting them to prosecute their claims without disclosure of their identity at every stage of the proceeding will not impair the defendants’ ability properly to defend themselves; and (c) anonymity in the pre-trial process will not impair the court’s ability to achieve just results between the parties.
While the judicial systems, both civil and criminal, have work to do in protecting those that come forward regarding complaints of sexual abuse and other related claims, anonymity orders provide some agency and level of protection for survivors in the civil litigation context.
In addition, discussing these issues and the possibility of a claim with a lawyer will always remain confidential as between you and your lawyer due to professional obligations lawyers are required to follow.
If you have been the victim of any type of harm but have feared to discuss it due to privacy concerns, you can reach out to a lawyer for guidance.
Meet The Author
Britni is an Associate in the Personal Injury Group at Watson Goepel LLP. She practices exclusively in the area of personal injury law, advocating for injured people and helping them obtain fair compensation. Britni has experience with all manners of dispute resolution including settlement negotiations, mediations and trials.