The Trial
| Author | Nathalie Des Rosiers; Louise Langevin |
| Pages | 265-315 |
Chapter
6
The
Trial
This
chapter,
which
examines
the
problems
encountered
by a
plaintiff
during
a
civil
trial,
is
divided
into
two
main
sections.
The
first
part
examines
the
extent
to
which
the
trial
is
public;
the
sec-
ond
looks
at the
different
methods
of
proof
available
to the
plaintiff.
I.
PROTECTING
THE
PLAINTIFFS
IDENTITY
449.
The
Problem
-
Once
the
decision
is
made
to sue the
presumed
abuser
for
damages,
the
public
nature
of the
proceedings
becomes
an
issue.
Article
13 of the
Code
of
Civil Procedure
(C.C.P.)1
and
sec-
tion 23 of the Quebec Charter of Human Rights and Freedoms2
express
the
principle
that
hearings
are
public,
except
in the
inter-
ests
of
good
morals
or
public
order.
Yet,
in
certain
instances,
public
legal
proceedings
can
harm
a
victim
of
sexual
abuse.
The
victim's
therapy
risks
being
undermined
by the
possible
public
revelation
of
intimate
details
of her
life.3
Publicity
can
have
consequences
for her
career,
given
the
taboos
that
exist
against
these
victims,4
and the
1.
Article
13
C.C.P.:
"The sittings
of the
courts
are
public wherever they
may be
held,
but the
court
may
order
that
they
be
held
in
camera
in the
interests
of
good
morals
or
public order. However,
in
family
matters,
sittings
in
first
instance
are
held
in
camera,
unless
the
court, upon application, orders
that,
in
the
interests
of
justice
a
sitting
be
public."
2.
Section
23,
Quebec
Charter
of
Human Rights
and
Freedoms, R.S.Q.,
c.
C-12:
"Every
person
has a
right
to a
full
and
equal, public
and
fair
hearing
by an
independent
and
impartial tribunal,
for the
determination
of his
rights
and
obligations
or of the
merits
of any
charge brought against him.
The
tribunal
may
decide
to sit in
camera, however,
in the
interest
of
morality
or
public
order."
3.
On the
role
of the
media
in
respecting
the
crime victim's privacy,
see
Arlene
Gaudreault,
"Un
regard
sur la
situation
des
victimes d'actes
criminels,"
in
Pierre Trudel, ed., Droit
du
public
a
I
'information
et
vieprivee:
deux droits
irre-
conciliables?
(Montreal:
Les
Editions Themis, 1991)
at 83.
4. See J. Doe v.
T.B.H., [1996] O.J.
No. 839
(Ont. Gen. Div.)
(Q.L.);
R.K.
v.
McBride,
[1994]
B.C.J.
No.
2791 (B.C. Prov. Ct.)
(Q.L.);
Re
Hirt
and
College
of
265
266
INSTITUTING PROCEEDINGS
publicity
can
make
the
plaintiff even more nervous.
All of
these fac-
tors
can
prevent
her
from
testifying clearly, thereby impugning
her
credibility.
The
victim
may
also
fear
the
impact
of
publicity
on
fam-
ily5
or
friends
who are
unaware
of the
abuse. Revelation
of the
par-
ties'
identities
may
harm
the
defendant's
ability
to
sell
his
property
in the
event
of a
judgment
against
the
defendant
and
execution
of
the
judgment.6
A
public hearing
can
infringe
the
plaintiffs
rights
to
security
and
integrity
of her
person (section
1 of the
Quebec
Charter),
to
safeguards
on her
dignity
and
reputation (section
4 of
the
Quebec Charter),
and to
respect
for her
private
life
(section
5 of
the
Quebec Charter). Such
effects
can,
in
turn, create
yet
another
obstacle
that
compromises
the
victim's ability
to
institute
such
an
action
and
receive
compensation.7
450.
Safeguards
—
In
response
to
these
potentially harmful
effects,
the
victim can, prior
to the
commencement
of
proceedings, make
a
motion
for
authorization
to use a
pseudonym
or her
initials,
to
have
the
record sealed,
to
have
a
temporary publication
ban to
protect
her
identity,
or for an
order
that
the
proceedings
be
held
in
camera.
The
various defendants
may
make
the
same motions. These
motions
obviously
conflict
with
the
citizen's
right
to a
public hear-
ing
and
restrict
the
freedom
of the
press.
It is up to the
courts
to
arbitrate
between
these
conflicting
fundamental
rights.
We
will examine
the
criteria
retained
by the
jurisprudence
in
order
to
justify
in
camera hearings, publication bans
on the
parties'
identities,
or
sealed records
in
actions
for
damages
in
cases
of
sex-
ual or
spousal abuse. Having analysed
the
basis
for
making
legal
disputes public,
we
will examine
the
exceptions
to
this
rule
in
crim-
inal
and
civil
trials.
We
propose
that
the
special measures used
in
criminal
law to
protect
the
privacy
of
victims
of
sexual abuse during
the
trial
should also apply during
a
civil action, given
that
the
aims
are the
same.
Physicians
and
Surgeons
of
British
Columbia (1985),
17
D.L.R. (4th)
472
(B.C.
S.C.).
5. See
S.M.
v.
J.R.C. (1993),
13
O.K.
(3d)
148
(Ont. Gen. Div.).
6. See D.
(Guardian
ad
litem
of)
v. F.,
[1995]
B.C.J.
No.
1478 (B.C. S.C.) (Q.L.).
7.
See
D.H.
v.
L.J.H., [1997] B.C.J.
No.
2724 (B.C. S.C.)
(Q.L.),
where
the
victim
of
several
years
of
sexual
and
physical
abuse
testified
by
affidavit
to
protect
her
privacy. Because
of the
limited evidence,
the
amounts awarded
did not
adequately compensate
the
plaintiff.
THE
TRIAL
A.
The
Principle:
The
Public
Trial
451.
A
Strong Public
Policy
- The
public
nature
of
legal proceedings,
criminal
as
well
as
civil,
constitutes
one of the
fundamental princi-
ples
of
our
legal
system.8
This principle
is now
entrenched
in
section
11 (d) of the
Canadian Charter.
It is
also recognized
by
section
23 of
the
Quebec Charter,
as
well
as
article
13 of the
Code
of
Civil
Procedure.9
Mr.
Justice
Dickson noted
in
A.G.
(Nova
Scotia)
v.
Maclntyre
that
in
legal proceedings,
"covertness
is the
exception
and
openness
the
rule."10
The
public
nature
of
trials
is
justified
for
several reasons. Madam
Justice
Wilson summarized
these
grounds
in
Edmonton Journal
v.
Alberta
(Attorney
General):
. . . the
public
interest
in
open
trials
and in the
ability
of
the
press
to
provide
complete reports
of
what
takes
place
in the
courtroom
is
rooted
in the
need
(1) to
maintain
an
effective
evidentiary process;
(2)
to
ensure
a
judiciary
and
juries
that
behave fairly
and
that
are
sensi-
tive
to the
values espoused
by the
society;
(3) to
promote
a
shared
sense
that
our
courts operate with
integrity
and
dispense justice;
and
(4)
to
provide
an
ongoing opportunity
for the
community
to
learn
how
the
justice system operates
and how the law
being applied daily
in the
courts
affects
them.11
Mr.
Justice
Dickson referred
in
Maclntyre
to the
transparency
of
legal proceedings
as
constituting
"a
strong public
policy."12
Given
that
the
majority
of the
public
is not in a
position
to
observe
the
8.
See
Scott
v.
Scott,
[1913]
A.C.
417.
On
this
subject,
see
Pierre
Trudel,
"Liberte
de
presse
ou
proces
public
et
equitable?
A la
recherche
du
fondement
au
droit
d'acceder
aux
audiences
et de
diffuser
des
informations
judiciaires,"
(1989)
49
Revue
du
Barreau
du
Quebec
251;
M.
David Lepofsky,
Open
Justice:
The
Constitutional
Right
to
Attend
and
Speak about Criminal Proceedings
(Toronto: Butterworths, 1985).
9.
It is the
same
in
disciplinary
law.
See
also section
142,
Professional
Code,
R.S.Q.,
c.
C-26: "Every hearing
shall
be
public. Notwithstanding
the
first
para-
graph,
the
committee
on
discipline
may,
of its own
initiative
or
upon
request,
order
that
a
hearing
be
held
in
camera
or ban
access
to or the
publication
or
release
of any
information
or
document
it
indicates,
in the
interest
of
morality
or
public order,
in
particular
to
preserve professional secrecy
or to
protect
a
person's privacy
or
reputation. Every person who,
by
performing
or
omitting
to
perform
an
act,
infringes
an
order
to
hold
a
hearing
in
camera
or an
order
banning access, publication
or
release
is
guilty
of
contempt
of
court."
10.
185;
see
also Canadian Broadcasting
Corp.
v. New
Brunswick
(A.G.),
495.
11.
at
1361.
12.
Above,
note
10 at
183.
267
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