Can a Criminal Case Lead to a Civil Lawsuit?

Many of my clients have asked me over the years, can my criminal case wind up as a civil lawsuit? Could I get sued after I complete this criminal case? The answer is absolutely yes you can. 

This is a very interesting topic, because there’s different burdens of proof you see. In a criminal case, the Crown’s trying to prove beyond a reasonable doubt, that you’re guilty of a crime such as sexual assault or impaired driving causing death, for example, whereas in a civil lawsuit, the other side the aggrieved party, who’s the victim, they’re suing you for financial compensation, and the burden of proof is much less. So, for example, you may win your criminal trial. Let’s say you have an allegation of sexual assault and the jury finds you not guilty, but it’s a close call case. Well, the other side can still decide to sue you, because it’s a lesser burden. Think about OJ Simpson, for example, he was acquitted of murder, but the other side successfully sued him and got a very large judgment award, which they attempted to pursue over the years and got some degree of money from him. So this is a very interesting topic. 

The other thing that goes on here, let’s say you did a sexual assault and you admit your guilt and you plead guilty to it in criminal court. Well, that admission that can be used against you in the civil proceeding. Now the other side doesn’t even have to prove that you did a sexual assault. This is called a prima facie admission of guilt. So all the other side has to do at that point is to prove the damages, how much the sexual assault is worth in terms of pain and suffering, loss of income, psychological damages.  So this often happens unfortunately and sometimes the other side waits to do a civil lawsuit. A lot of personal injury lawyers who victims go see them and say, well, let’s wait and see how the criminal proceedings go. We can get full discovery of the case. It’s a public record, and we’ll see if the other side pleads guilty and how the trial goes because a lot of lawyers, they work on contingencies. So they don’t want to necessarily take on a case before you know they know they’re going to win it. Contingency means they’re doing it for free, essentially, and their award is based on a percentage of the damages award. 

Now the other thing you have to watch out for is this, if you’re in your criminal case, let’s say sexual assault, and you take the witness stand to defend yourself, and often in sexual assault cases, that happens, you have the protection of section 13 of the Canada Evidence Act, so if you, for example, incriminate yourself, let’s say you do that inadvertently or by mistake, that cannot be used against you in a subsequent proceeding, which means in the civil lawsuit, if you admitted the sexual assault in the criminal case, somehow or just inadvertently, that cannot be used against you, but the non-incriminating aspects of it can be used to cross examine you. So for example, you’re telling your little story, and eventually, two years later, in the criminal case, or the civil case, I should say you’re testifying or your examination for discovery, the lawyer would be able to use the non-incriminating features of it. 

So there’s some degree of protection under Section 13 of the Charter for this. But here’s the bottom line, many criminal cases result in civil lawsuits. Sometimes they’re concurrent. Sometimes you’ll get charged with sexual assault and you’ll get served with a lawsuit right away. But in many instances, the other side will wait to see how the criminal trial goes, to wait to see if you plead guilty so then the civil lawsuit becomes a slam dunk because they don’t have to prove you’re liable.  You’ve already admitted you’re liable essentially.  So there you have it. You’re facing serious charges, obviously, and now you’re facing serious repercussions, financially, potentially. And believe me, if this happens a lot over the bottom line, if you did the crime, you often have to do the time and pay the money as well. So that’s the bottom line with respect to civil cases arising out of criminal circumstances.