The criminal process can play an important role for victims/survivors of sexual assault or abuse. However, the civil process is another route that individuals may wish to pursue instead of the criminal process, or in addition to the criminal process, even when a criminal conviction has not been obtained. While the criminal process focuses on the innocence or guilt of the accused, the key purpose of the civil process is to provide financial compensation for losses or injuries that plaintiffs have suffered.

Key Differences: The Burden of Proof

There are many differences between the criminal process and the civil process in cases of sexual assault and/or abuse, but one of the key distinctions is the burden of proof: “beyond a reasonable doubt” in criminal cases and on a “balance of probabilities” in civil cases.

In criminal cases, if the Crown proves the offence beyond a reasonable doubt, then the accused is convicted. If the Crown does not meet this burden, then the accused is acquitted. In criminal cases involving sexual assault, it is often a “he said, she said” scenario. Cases frequently turn on credibility. The Supreme Court of Canada in R v W(D), set out how credibility should be assessed:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

This is frequently referred to as the WD test.

A criminal acquittal does not necessarily preclude a civil case. A criminal acquittal simply means that a reasonable doubt was raised about whether the offence was committed. An acquittal can also have practical implications for the civil process, such as whether it makes sense to bring a civil lawsuit and whether such a lawsuit is likely to succeed.

In the civil process, the burden of proof is on a “balance of probabilities”, meaning that it is more likely than not that the actionable wrong – sexual assault or abuse – occurred. This is a lower standard of proof. Thus, it is possible for an accused to be acquitted in criminal court but still found liable in a civil case.

How Can a Criminal Sexual Assault Case Impact a Civil Claim?

A criminal conviction can be helpful in civil sexual assault or abuse cases because it can help determine the issue of liability in the civil process. A conviction essentially guarantees that the offender will be liable for damages and often answers the issue of whether the actionable misconduct (assault or abuse) occurred. Some of the questions that may remain to be determined in the civil process after a conviction include whether others – such as individuals, employers or institutions – are responsible for allowing an assault or abuse to occur or persist, and how much compensation a victim may be entitled to for losses or injuries suffered.

In some situations, an offender may be convicted on certain criminal charges and acquitted on others. Matthew McKnight, the now infamous nightclub employee, was convicted of five counts of sexual assault and found not guilty on eight other counts. On August 1, 2020, the Alberta Court of Queen’s Bench sentenced McKnight to eight years in prison. Our recent blog post on this case dealt with the issue of vicarious liability and the legal risk for employers.

If you have questions about bringing a civil claim for sexual assault or sexual abuse, contact the lawyers at HMC Lawyers online or by phone at 1-800-480-3534 to arrange a confidential discussion.