CIVIL SEXUAL ASSAULT

Yes. Sexual battery is the civil wrong akin to sexual assault under the Criminal Code of Canada. A survivor can bring a claim for compensation as the plaintiff in a Statement of Claim filed in the Court of King's Bench of Alberta. Your civil claim is separate from any criminal process, and since you hire the lawyer that represents you, you retain greater control over the process. No police report or criminal charge is required. You decide whether to start, continue, or settle the claim. Furthermore, the case is proven on a balance of probabilities rather than beyond a reasonable doubt, and the defendant cannot refuse to give evidence, unlike in criminal proceedings.

Yes. In Alberta there is no limitation period for civil claims arising from sexual assault or sexual abuse, including abuse that happened in childhood. We advance historical claims in the Court of King's Bench of Alberta. If the abuse was systemic, then claims can be advanced against institutions such as schools, churches, and sports organizations in addition to the individuals involved. The legislature has recognized that survivors of childhood abuse frequently come forward only decades later, and the Limitations Act has been drafted with this in mind.

Yes. A civil claim is completely separate from any criminal proceedings. You can pursue a civil lawsuit for financial compensation even if you never filed a police report, or if charges were investigated but never laid. The decision to start a civil claim is entirely yours. The claim is brought in the Court of King's Bench of Alberta and proceeds on your instructions, not the Crown's. Both processes can run simultaneously. We can discuss the interplay between civil and criminal proceedings and advise you on your situation and goals.

Yes. A civil claim does not depend on the outcome of a criminal case. An acquittal, a stay, or withdrawn charges mean the Crown could not prove guilt beyond a reasonable doubt or chose not to proceed. These are not automatically findings that the assault did not happen. A civil claim in the Court of King's Bench of Alberta is decided on a balance of probabilities, a lower standard, on evidence your own counsel presents. Canadian courts have found defendants liable for sexual battery after criminal proceedings ended without a conviction.

In Canadian law consent is the voluntary agreement to the specific sexual activity in question, and silence or the absence of resistance is not consent. There is no implied consent to sexual activity. In a civil claim the survivor proves that sexual contact occurred, and the burden then shifts to the defendant to prove that valid consent was given. Apparent consent can also be legally invalid where a power imbalance such as a relationship of trust or authority compromised your ability to agree freely. We have published an article on consent in civil sexual assault litigation that explains these principles in greater detail.

In rare circumstances, yes. Alberta courts can permit a plaintiff in a sexual assault claim to proceed under initials or a pseudonym and can make restricted access or publication orders protecting identifying information. These orders are not automatic. The courts operate under what is called the open court principle, which means that the public is entitled to know what goes on in our courts. To proceed with anonymity, the court must be persuaded that protection is justified. Anonymity protections are addressed at the outset of a claim in the Court of King's Bench of Alberta.

Possibly, and the scope is defined by what we advance in your Statement of Claim rather than being automatic. Under the Alberta Rules of Court, records relevant and material to the issues are to be produced to the other side. There are meaningful limits and the interpretation of your production obligations can be argued in Court. Even if certain records are produced to the other party, those records are protected by an implied undertaking of confidentiality that bars use outside the lawsuit. Often these records assist as they are supportive of damages and the recovery of out of pocket costs.

Most civil claims are resolved without a trial. It is more realistic to expect to be questioned pursuant to the Rules of Court. These questionings are a standard step in all lawsuits and are generally under oath and held in a boardroom or via video conference. Your lawyer will be present and will assist you with preparation beforehand. If your claim does proceed to trial in the Court of King's Bench of Alberta, oral testimony is generally required. Throughout the claim you keep the decisions about settlement, so how far the process goes remains substantially within your control.

Fees are addressed directly at the start and will follow the terms of an agreement between us. In certain circumstances Baker Law Firm will consider contingency or partial contingency fee arrangements, where some or all of our fees depend on the recovery rather than being billed during the claim. Civil litigation in the Court of King's Bench of Alberta also operates under a presumption that the successful party is entitled to some recovery of their legal costs. An unsuccessful party is ordinarily ordered to pay a portion of the successful party's costs, though this can be a highly contested part of any litigation. A clear discussion of fees, disbursements, and costs comes before any commitment is made.