Gluckstein puts empathy, trauma-informed care, and meaningful change at the heart of its practice
This article was produced in partnership with Gluckstein Lawyers
The recent Hockey Canada case is a stark example of what a survivor of sexual abuse experiences as the primary witness for the Crown when criminal charges are laid against the alleged perpetrators.
After authorities opted not to pursue criminal charges when the survivor, referred to as EM, first reported the assault, she turned to a civil claim. That case was settled by Hockey Canada, with the organization not disclosing either the amount or the identities of the players involved. When it was revealed that Hockey Canada kept a slush fund specifically for sexual abuse claims, there was a public uproar that renewed police investigation and resulted in criminal charges against the accused players.
Because the burden is beyond a reasonable doubt, a sexual abuse survivor typically undergoes harsh cross-examination. In this case, the complainant spent seven days on the stand enduring questioning that brought out every rape myth and criticized everything EM did or didn’t do before, during, and after the alleged assaults. These tactics can be deeply retraumatizing, deterring many survivors from pursuing criminal charges in the first place.
“The Hockey Canada case was not a surprise to those of us that practice in this area, in terms of not seeing a conviction and the tactics used for the purposes of cross-examining,” says Linda O’Brien, senior associate at Gluckstein Lawyers. “It's a really aggressive system with a really low conviction rate: it’s definitely not for everyone.”
On the criminal side, it’s the police that determine whether they investigate a claim of sexual assault and ultimately whether charges are laid. If they do lay charges, it becomes the Crown versus the perpetrator. The survivor is relegated to the main witness for the prosecution and receives very little support. There’s also the risk that they won’t be heard because of a technicality, such as the Jordan principle that mandates a case be thrown out if it is delayed longer than 18 to 24 months depending on the level of court.
In the civil justice system, however, the survivor plays the main role as the plaintiff. While the only justice is monetary in terms of damages, there’s more certainty. The plaintiff is still required to produce extensive records such as education, medical, counselling, and employment to establish the impact the sexual assault had on their life. But very few of these cases end up at trial, meaning they can share their story at examination for discovery or mediation and aren’t subjected to a cross-examination process.
For survivors, many of whom suffer deep and lasting effects from their trauma including depression, anxiety, post-traumatic stress disorder, addiction, difficulty trusting others, and disrupted relationships and life opportunities, “there are probably more pros to the civil route.”
“Survivors have control of the system and an opportunity for their voice to be heard — much more so than in the criminal system, where the focus is simply on establishing doubt,” O’Brien, who has 29 years at the bar and comes from a civil litigation defence background, says. “It’s a better mechanism for providing them with that sense of justice they’re seeking.”
Wanting to finish her career doing something that improves others’ lives, O’Brien joined Gluckstein’s Sexual Abuse Team in 2023. An elite team in a difficult practice area, Jellinek Ellis Gluckstein Lawyers work diligently to provide a safe space for survivors. Handling mostly historical claims — abused while in CAS care or by religious organizations, for example — the team helps clients sort through legal options to find the most effective means to hold offenders accountable.
“By the time they come to us, they're adults who have been through lots of counselling, recovered from their addictions, and reached a point where they’re looking for the last piece of the puzzle to be able to move on with their lives,” O’Brien explains, adding that the group is selective about which cases they’ll proceed with.
“The only thing the survivor can get is financial compensation, and we won’t put them through the process to have them receive absolutely nothing in the end,” she says. “We see it as totally delinquent to proceed if we don’t believe the outcome will be favourable to them — that’s just re-traumatization.”
The Gluckstein Sexual Abuse Team approaches all cases in a trauma-informed way. They’ve seen firsthand the impact trauma has on things like memory, sobriety, the ability to communicate, and psychological wellness. There’s an understanding that as much as they employ sensitivity, a client sharing their experience can be incredibly difficult.
Gluckstein hosted a series of educational efforts with Eden Dales, a social worker who specializes in trauma-informed care, including a webinar and a podcast, and the team of ten sexual abuse-specific practitioners and clerks, are very aware that even in the context of personal injury, this is an extremely delicate subset.
“We're very gentle with the clients and clear that they’re being heard and we’re here to support them,” O’Brien says. “If they’re not getting what they need from their current therapist, for example, we’ll assist to find other providers that may be able to assist them.”
Ultimately, O’Brien’s message is simple: any lawyer working in this area needs to be in it for the right reasons. Because they’re empathetic and compassionate, and because they hope that lawsuits — especially against institutions — will drive real change in policy and procedure. While there’s been considerable progress, “every day there’s another teacher, priest, coach or foster parent in the news.”
“There’s more work to be done,” O’Brien sums up. “We must advocate beyond our own files by supporting agencies that help survivors of all forms of abuse, from human trafficking to intimate partner violence. It’s about using your legal skills to make a difference — not just doing a job.”
