Sexual violence and civil courts | “A cultural change must be made”

Civil and administrative courts need an electric shock of the magnitude of what the #metoo movement was for criminal justice, concludes Juripop two years after receiving the mandate from Quebec to document the obstacles before these courts for victims domestic and sexual violence.

M^e Sophie Gagnon still can’t believe it.

In a recent civil case, a judge refused to allow a victim of domestic violence to be accompanied by a specialized worker to testify before the Court.

This woman needed support because she was terrified of testifying in the same room as her abusive ex-partner.

“The request was contested [par la partie adverse, soit l’ex-conjoint]then refused by the court even though in criminal matters, victims can even testify with dogs »says the general director of Juripop, still scandalized by the decision of this civil judge.

M^e Gagnon wants us to understand her clearly here: she is delighted that support dogs are now offered in the specialized courts recently created in criminal justice to deal with cases of sexual or domestic violence.

But these same victims – who find themselves before civil and administrative courts – are refused adaptation measures such as the support of a worker or even the possibility of testifying by videoconference to avoid being in the same room that the aggressor – real story – this demonstrates in his eyes the extent of the “cultural change that must be made”.

The report Rebuilding trustproduced after the shock of the #metoo movement, essentially worked to correct the flaws in the criminal justice system, recalls M^e Gagnon. In addition, the specialized courts set up following the report focus solely on criminal law. However, “a victim of domestic violence, if she has children, she will have as much, if not more, dealings with the civil justice system [pour la garde, la pension alimentaire, etc.] than the criminal system”, underlines M^e Gagnon.

Same thing for victims of sexual violence: if they denounced their attacker on Instagram and are sued for defamation or if they have suffered damage and want to sue the perpetrator of violence in court, “once again , it will be in civil court that it will happen,” indicates the general director of Juripop.

“Two-speed” system

In 2021, the Minister of Justice of Quebec entrusted Juripop with the mandate to represent victims of domestic and sexual violence free of charge before civil and administrative courts, with the mission of documenting obstacles and proposing innovative solutions to improve their journey.

After having represented around fifty victims for two years, the non-profit legal organization concludes that “this system has a lot of pitfalls about which we have spoken very little publicly and which undermine dignity, security, to the reparation of victims and survivors”, affirms its general director, M^e Gagnon, in interview with The Press. She wants a collective awareness of the extent that the #metoo movement has had on the criminal justice system.

Juripop speaks of a “two-tier” justice system. “Criminal law was designed taking into account the fact that there are victims; that they are vulnerable people whose protection the court must ensure, underlines M^e Gagnon. In civil matters, the equality of the parties is presumed. This means that it is the role of the lawyer who represents the victim to be aware of his client’s accommodation needs and then to request them from the court. »

These accommodation measures should be offered automatically when one of the two parties is the victim of violence and must confront the author of this violence in civil court, according to Juripop.

“Our ambition is to obtain these measures in such a way as to set a precedent so that in the future, lawyers in private practice throughout Quebec can request them,” says Ms.^e Gagnon, whose organization was also mandated by Quebec to offer training to lawyers who work with victims throughout the province.

Gains and pitfalls

Among its recent gains, Juripop obtained the first civil protection order in the context of domestic violence. This order is a “protection tool” which can be used by victims of domestic violence who have not yet filed a complaint with the police or who do not wish to do so. It can, for example, prohibit a violent spouse from approaching the victim’s residence or work or even force the violent spouse to hand over their weapons.

In this case, the Court of Appeal subsequently found the perpetrator of violence guilty of contempt of court. An important judgment which creates case law, rejoices Justine Fortin, lawyer and program director at Juripop.

Another victory: the first appointment of a front lawyer – a model inspired by criminal law – to cross-examine a victim. The front lawyer is independent. He is responsible for asking questions for the perpetrator during cross-examination.

This is because in family law, often the perpetrators of violence will represent themselves, indicates M.^e Fort.

Vast construction site

The Juripop project is vast. Victims of sexual violence are not treated equally by civil courts, the organization also notes.

For example, a victim who suffered incest will receive more generous damages than a person who experienced sexual violence as an adult, according to case law. The organization wishes to challenge this hierarchy of violence and this inconsistent treatment of it by the courts.

Another pitfall: the analysis of the child’s interests still tends to favor “at all costs” parental time with the violent parent to the detriment of an adequate response to the needs of the child victim.

To a man who had been incarcerated for domestic violence and who was demanding custody rights, a judge said: “The Court recognizes that the child is a victim of domestic violence, but it is sensitive to a father who would not have the right to see your child,” says M^e Fort.

The organization is working to obtain landmark judgments that will reverse this jurisprudential trend.

Another problem diagnosed by the organization: to file a claim in civil courts, the victim must normally disclose their personal information such as their name and address. It is possible to request anonymity and enter the address of the law office. However, it is at the discretion of the Court, whereas it should be automatic when the facts in dispute involve sexual or domestic violence, believes Juripop.

Juripop has the ambition to “change” civil law, at least “to try”, conclude the two enthusiastic lawyers.