With the recent high-profile acquittal of Jian Ghomeshi in respect of various sexual assault and related criminal charges, there has been significant media attention over the challenges faced by sexual assault survivors in advancing claims in the courts.
There is no question that sexual assault claims, in the absence of physical evidence, are difficult to prosecute in the criminal courts where the Crown must prove guilt “beyond a reasonable doubt”. This is contrasted with the “balance of probabilities” standard of proof that applies to civil claims, which requires that litigants prove their claims on a “more likely that not” standard, which is significantly lower than the standard that applies in criminal cases.
While it is not known whether the complainants in the Ghomeshi case intend to pursue civil charges, they retain the right to do so, despite Mr. Ghomeshi’s acquittal in the criminal court. A recent legislative change will reduce one potential barrier to their claims, which may have existed. On March 9, 2016, the Ontario Limitations Act was amended to remove all limitation periods for civil claims “based on sexual assault”.