Proposed bill removes barriers, improves access to justice

The Ontario government has introduced a new bill which, if passed, would amend various statutes related to sexual violence, harassment and domestic violence, eliminating technical barriers that have long plagued such claims, says Toronto lawyer Elizabeth Grace.

If adopted, Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), would, among other things:

– Amend the Limitations Act to remove the limitation period for civil proceedings based on sexual assault; and

– Amend the Compensation for Victims of Crime Act to remove the limitation period for applications arising out of crimes of sexual violence or violence that occurred within a relationship of dependency or intimacy.

The bill was introduced in the legislature on Oct. 27. It has passed first reading and will go through several additional stages of review before being finalized as law in Ontario.

Grace — whose practice at Lerners LLP focuses in part on civil claims arising out of sexual abuse — applauds the proposed changes, and says they are in line with suggestions she presented to the province’s Select Committee on Sexual Violence and Harassment in the spring.

Two decades ago, when Grace started working in this area, limitation period defences presented huge obstacles for her and her clients, given that so many claims arising from sexual abuse are historical.

In 2004, the province introduced the current Limitations Act — much to the relief of Grace, who says the updated legislation was a game-changer.

The latest changes go even further, and are necessary and overdue, she says.

“There are so many reasons why people don’t come forward with these claims right away. For lawyers like me who have long worked in this area, limitation periods have meant a lot of effort, energy, time and money invested in developing the arguments and evidence to overcome limitations defences,” Grace tells AdvocateDaily.com.

“When lawyers are looking at taking on these cases they have to consider whether they’re going to get knocked out of the ring early on based on a limitation period defence. A lot of the energy that had to go into that can now go into establishing that the wrong happened and what harms flowed from it.”

An important note about the current act, says Grace, is that it deals with two separate categories of sexual abuse: that which occurs within and that which occurs outside a power-dependency relationship. While there is no limitation period for the former scenario, the latter triggers a different set of rules where the limitation period can potentially be as little as two to 15 years, she adds.

The proposed amendments in Bill 132 eliminate the distinction between the two categories and remove the limitation period for all civil proceedings based on sexual assault.

“The changes also include the concept of retroactive revival, so if you were the subject of a sex assault previously, and under the previous legislation it was too late to file a claim, you can now bring your claim under the new regime,” says Grace, noting there are some exceptions to this rule in the proposed bill, but they are minor.

“The proposed amendments get rid of the technical barriers in an area of law that is riddled with shame, guilt and fear of coming forward. It clears that obstacle and removes the fight over what the rules are and whether someone is too late. That’s off the table now, which will allow cases to proceed on their merits,” says Grace.

“It will mean less costly litigation, less risky litigation, and more access to justice for victims. It’s a move toward a more responsive legal system.”

The proposed changes to the Compensation for Victims of Crime Act are also significant, says Grace.

The bill would eliminate the current two-year limitation period for survivors of sexual assault and domestic violence to make a compensation application to the Criminal Injuries Compensation Board.

“This wipes out any obstacle for seeking compensation for criminal injuries, whether it’s sexual violence or domestic violence,” says Grace, noting the act will also have a retroactive element similar to the Limitations Act amendments. “Victims are no longer going to have to worry about whether they satisfy the criteria to get around the two-year limitation period. If the changes are adopted, that’s all out the door.”

“They won’t have to justify why they took the time they did to come forward. That’s a very good thing in an area where there’s a lot of guilt, self-blame and shame. It takes that layer of bureaucracy off the table and allows the Criminal Injuries Compensation Board to get to the merits of a case and not worry about the technical defences.”

Another area of change welcomed by Grace relates to the scope of the proposed exemptions in the Limitations Act. The current system, she says, doesn’t capture forms of sexual misconduct that don’t involve actual or threatened sexual touching.

“Consider the case of an adult who does not actually touch a child sexually, but manipulates the child into sexually exposing him or herself to the adult and/or to others. In this Internet age, ‘cyberbullying’ and ‘sexting’ and the devastation these forms of misconduct cause to girls in particular comes to mind,” says Grace.

“The current act does not define ‘sexual assault’ broadly enough to capture such misconduct, meaning the victim of such sexual exploitation would be governed by the general provisions in the act, including its standard two-year limitation period.”

Bill 132’s proposed changes not only eliminate the limitation periods for proceedings based on sexual assault, but also for any other misconduct of a sexual nature.

“There are certain qualifiers, but overall, it’s a very positive change,” says Grace.

“This is going to be a new area of the law where, if the bill passes, we will see development. The courts are going to have to interpret what is encompassed by the amendments. For example, if a victim was enticed over the Internet, is the Internet provider a party that contributed to the sexual misconduct and therefore also prevented from raising a limitations defence? It will be very interesting to see how far this goes.”

All of the proposed amendments are part of the Wynne Government’s action plan to combat sexual violence and harassment, titled “It’s Never Okay,” released in March 2015.

The $41-million strategy was drafted in response to several high-profile incidents, and targets everywhere from university campuses to workplaces and hospital rooms.

This article originally appeared on AdvocateDaily.com
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