N.S. appeal court gives clarity on confidentiality orders carrying over from criminal to civil cases

A recent Nova Scotia Court of Appeal decision involving a Halifax woman’s lawsuit claiming the U.K. government was vicariously liable for an alleged assault by four British sailors in 2015 clarifies when a confidentiality order given during criminal proceedings flows through to a subsequent civil suit.

In the United Kingdom of Great Britain and Northern Ireland (Attorney General) v. L.A, a three-member panel of the appeal court allowed the U.K. government’s appeal of a confidentiality order granted by the hearing judge in the lower court. L.A. claimed that she had genuine concerns that continuing to prosecute this suit under her name would bring unwanted attention that would follow her throughout her personal and professional life.

“The Court of Appeal very clearly said the protections provided by the Criminal Code when it comes to confidentiality automatically flow to the civil complaint, if it is clear the two are interrelated,” says Michael Dull, a Halifax-based lawyer representing L.A. He adds this decision could have value as precedent in similar future cases.

In granting the appeal, the court set aside the confidentiality order given at the lower court level. It said the hearing judge was “wrong to conclude” that the test for determining the need for a confidentiality order applied in this case. The decision was written by Court of Appeal Chief Justice Michael Wood, with Justice Duncan Beveridge and Justice Cindy Bourgeois concurring.

However, the panel’s decision also made it clear that the identity of the plaintiff in the case was still under the publication ban ordered during the criminal proceedings against the four U.K. sailors, which did not result in any convictions.

“When information in a civil matter could identify the complainant in a criminal case a ban under s. 486.4 of the Code would prevent its publication,” the panel wrote in its ruling. “That is so in this proceeding because of the express linkage to the widely publicized criminal trial in which a publication ban had been ordered.”

The application for the confidentiality order, in this case, is governed by the Dagenais/Mentuck test for common law publication bans. The first part of the test requires a finding that a ban be necessary to prevent a serious risk to the administration of justice due to a lack of reasonable alternative measures that would avoid the risk.

The second part of the test weighs the beneficial effects against harmful effects on either party and the public’s rights and interests.

The appeal court said the hearing judge erred by not properly considering all of the circumstances, including the effect of the criminal publication ban, which remains in place and would prevent L.A. from being identified as the alleged victim in the criminal proceeding. The two proceedings are interrelated, as the allegations in the statement of claim referred to the criminal charges.

Despite his client’s application being dismissed by the appeal court, Dull says she is pleased that confidentiality will be maintained as the civil case proceeds. Launched in 2018, it is still in its early stages.

The four sailors were part of a British navy hockey team in Nova Scotia in April 2015, playing in a military hockey tournament. L.A. alleges the sailors gang-raped her in barracks at the military base.

Only one of the charges went to trial, but that resulted in an acquittal. Charges against one of the other sailors were dropped due to a lack of evidence. Charges against another were withdrawn after a judge ruled military police had violated his Charter rights in the hours following his arrest.

In the case against the fourth sailor, charged with sexual assault and sexual assault causing bodily harm, it was not revived after he could not make his original trial date because of complications from surgery. The Crown also said there was no realistic prospect of conviction.

In the civil lawsuit against the British government, L.A. argues the government should be held vicariously liable for its four employees’ conduct.

“The defendant [U.K. government] paid for its employees, who would go on to sexually assault the Plaintiff, to travel to Nova Scotia as part of an enterprise in public relations,” the suit claims “The Defendant provided its employees with the means and opportunity to come into contact with the plaintiff.”

It also says L.A. was induced to take a tour of the barracks because the sailors were members of the Royal Navy, “and thus she felt they could be trusted.” They wore hockey uniforms with “a logo of the Royal Navy prominently featured.”

Lawyer Dull adds that “by allowing these people to come here to engage with the this young woman, while in uniform, and then taking advantage of that uniform and the trust that would that would come by virtue of wearing the uniform, the U.K. government should be liable for the harms that flow from the alleged assault.”

And while the criminal charges had to meet the “beyond reasonable doubt” threshold, the civil case will be adjudicated on the basis of “balance of probabilities.”

However, the U.K. government has also made it clear it plans a vigorous defence.

In its first response, the U.K. government argued it should not be held responsible for the sailors’ activities after hours and only when representing the navy on ice. Following the acquittal of one of the men charged, the U.K. amended its response. It accused the L.A. of trying to relitigate issues that had been decided against her in the criminal trial.