Civil Rights

Signing on to silence: Confidentiality agreements in sexual assault cases

January 29th, 2018 by Michael Hackl

This article was first published on

The case of Larry Nassar, who for years was a doctor for Michigan State University and the U.S. Women’s Gymnastics Olympic team, and who has pleaded guilty to seven counts of criminal sexual conduct, is truly disturbing. In the sentencing phase of the trial, 156 victims made statements to the court about the impact of his acts on their lives.

This case also drew attention to situations where an attempt is made to silence victims through a non disclosure or confidentiality agreement. One of Nassar’s victims, McKayla Maroney, reached a settlement with USA Gymnastics (USAG) in December, 2016, which included such an agreement, prohibiting her from speaking about any abuse she suffered at the hands of Nassar. The confidentiality agreement also contained a provision that if Maroney violated the agreement, USAG could “fine” her US$100,000. This raised the question of whether she would, or could, make a victim impact statement at Nassar’s sentencing hearing. Ultimately, USAG confirmed that it would not seek to enforce those provisions if Maroney made a victim impact statement.

As a result of USAG’s decision, in this case the confidentiality agreement will not have prevented Maroney from speaking out. But what about other victims who have signed confidentiality agreements in the course of settling sexual assault claims, in cases when the other party to the settlement agreement will not agree to waive the confidentiality agreement? Are those persons free to speak without any repercussions? Unfortunately, in Canada, the answer is not clear. Read the rest of this entry

The law is settled on sexual assault. When will the legal system catch up?

March 30th, 2017 by Shelina Ali

This article was first published on

Over the past year, the treatment of sexual assault complainants in the justice system has received a great deal of mainstream media attention. Much of the coverage has focused on how unfairly sexual assault complainants are treated. Examples include:

  • The cross-examination of complainants in the Jian Gomeshi case and the judge’s findings that inconsistencies in the complainants’ testimony made them not credible.
  • Comments made by Justice Robin Camp during a sexual assault trial in Alberta — asking why the victim didn’t keep her knees together — that ultimately led to his resignation.
  • A comment by a Nova Scotia judge that a drunk person can consent — in a trial where the complainant was found by police unconscious and undressed in the back of a cab.

And then, just this past week, the Supreme Court of Canada released a one-sentence decision that sums up the exasperation at the failings of the justice system when it comes to sexual assault.

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With judges like Robin Camp, how impartial is Canada’s justice system?

September 29th, 2016 by Shelina Ali

This article was first published on

I was recently listening to a radio program featuring racialized lawyers in Ontario discussing the challenges they faced in the legal profession and was struck by my reaction. I thought: how unfortunate that this was all being shared publically. Unfortunate, not because I did not believe the experiences of these individuals or sympathize with the challenges they were describing, but because I didn’t want people to know about the challenges. Why would anyone hire a racialized lawyer if they knew that the lawyer felt that there was a higher standard placed on them in court, by judges, as compared with their non‑racialized colleagues?

I wish my reaction was that this was the unusual experience of one lawyer and not a reflection of the justice system’s treatment of marginalized groups generally. Instead, it was one which exposed my own distrust in the Canadian judicial system and its impartiality. And my belief that the justice system as a whole does not provide the same opportunities and access to justice for individuals of colour, women, and other marginalized groups.

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Privacy compromised: Legal rights and protections in Canada

August 4th, 2016 by Michael Hackl

This article was first published on

Privacy and secrecy are two interrelated concepts that raise a great many legal and ethical questions, with few easy answers. A recent example of the interplay between these concepts comes from the recent misuse of surveillance video by a liquor store employee. To set the stage, we have to go back to 2013, when a nasty verbal altercation between a feminist activist and men’s rights supporters at an event at the University of Toronto was recorded and uploaded to the Internet. The online response was truly appalling, as the woman involved received numerous serious threats. The level and nature of the abuse (including death and rape threats) was so egregious that she withdrew from her advocacy work, and instead tried to disappear from public attention.

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Alberta parents ‘morally blameworthy’ in son’s death: The moral dimension of alternative health care

June 30th, 2016 by Celia Chandler

This article was first published on

Last April, a jury found David and Collet Stephan guilty of “failing to provide the necessaries of life,” under section 215 of the Criminal Code, when their nearly 19-month-old son Ezekiel died in March 2012 of meningitis. Rather than pursuing traditional health care for their son, they made a series of decisions about his health care from February 27, 2012 — the day little Ezekial’s symptoms emerged ‑‑ through to the evening of March 13, 2012, when he stopped breathing and they called 911. Those decisions involved treating him with, among other things, hot peppers, garlic, onions and horseradish, despite a nurse family friend suggesting his symptoms might point to meningitis. Their defence at trial was that they had pursued a legitimate, alternative course of treatment.

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Carter & Assisted Suicide: Where We Stand One Year Later

March 2nd, 2016 by Safia Lakhani

This article was first published on the Ontario Bar Association’s website. It is an update to an earlier article which was first published on

February 6, 2016 marked one year since the Supreme Court released its ruling in Carter v. Canada, 2015 SCC 5. That decision struck down the constitutionality of Sections 14 and 241(b) of the Criminal Code, which prohibit assisted suicide, on the basis that they infringed on the individual’s right to life, liberty and security, and the right to equal protection under the law, in a manner that could not be justified under Section 1 of the Charter of Rights and Freedoms. Carter was a departure from the Court’s earlier ruling in Rodriguez, in which the provisions prohibiting assisted suicide were found to violate the individuals’ right to life, liberty and security, but in a manner that was justified under Section 1 of the Charter.

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