Sexual misconduct: PEI limits the use of confidentiality clauses

The new legislation now gives victims the choice to sign or not to sign a confidentiality agreement, when they reach a settlement with their harassers.

With the entry into force of this law, Prince Edward Island thus becomes the first jurisdiction in the country to limit the use of these clauses which prevent victims from disclosing what they have experienced.

Lynne Lund in interview.

Lynne Lund, a Green MP from Prince Edward Island, introduced this bill last November in the Legislative Assembly. (archives)

Photo: Radio-Canada / Ken Linton

These agreements aim to prevent victims from making public certain information about the harassment they have suffered, in particular the identity of the harasser, in exchange for certain concessions, such as sums of money.

The new law does not prevent the harasser and the victim from establishing a settlement agreement, but it allows the process to be framed.

For Green MP Lynne Lund, who introduced the bill last November, the purpose of the legislation is to give victims control when it comes time to come to an agreement with their stalker.

Confidentiality agreements will no longer be the standard, they will be the exception. When they are used, they will only be used when people have the opportunity to get legal advice. »

A quote from Lynne Lund, Green MP

Even if victims choose to remain silent, non-disclosure agreements should contain clauses allowing victims to waive this obligation in the future and to be able to make the information public if necessary.

Island law also requires victims to be well informed about their rights so they can make the best choice for them.

Confidentiality clauses, a common practice

Toronto lawyer Elizabeth Grace, who has represented clients in such disputes for more than 25 years, points out that this type of confidentiality agreement is still common practice.

These clauses deprive survivors of the choice whether or not to speak about what happened.explains the lawyer.

These confidentiality agreements protect the identity of the aggressors who remain hidden and continue to practice these sexual misconducts, according to Elizabeth Grace.

It keeps the public from knowing that there are sexual predators in our society.she says.

Allison Conway poses for the photo in front of a cliff.

Allison Conway is a lawyer with Budden and Associates in Newfoundland and Labrador. (archives)

Photo: Courtesy of Alex Stead Photography

For Allison Conway, a lawyer from Newfoundland and Labrador who has previously represented victims of sexual abuse, institutions or harassers who decide to reach a settlement generally want to protect their reputation.

They want to avoid a public trial in court, and it’s important for them to make a settlement agreement to avoid going to court.explains Allison Conway.

Some victims also prefer to opt for an out-of-court settlement to avoid a trial that can be difficult and traumatic, she said.

The Healing Process

Lawyer in Quebec and doctoral student in law at the University of Toronto, Michaël Lessard believes that these confidentiality agreements prevent the healing process of the victims.

We see it in several places in the country, very broad confidentiality agreements, which could prohibit telling the facts to relatives, friends, even health professionals, psychologists and social workers, and that can affect the healing process of the victims. he explains.

Michaël Lessard poses for the photo.

Michaël Lessard is a member of the Barreau du Québec and a doctoral candidate in law at the University of Toronto.

Photo: Courtesy Michaël Lessard

Michaël Lessard also emphasizes that the implications of the choices of victims must be presented clearly so that these people are aware of their rights.

It is an example of accessibility to justice, in terms of understanding the commitments into which one enters. […] This process is based on the fact that we must equip the victims both with legal advice and with the text of the agreement.he says.

Court cases and loopholes

Lawyer who has represented many victims of sexual abuse, John McKiggan, believes the island’s law could lead to fewer settlements being made between parties.

Harassers may prefer not to settle and go to court, since their identity could eventually be exposed by the victims.

In most cases, the abuser has multiple victims. Where there is one victim, there are ten, which is why abusers fight so hard to keep this type of behavior a secret. »

A quote from John McKiggan, lawyer

Allison Conway also believes the legislation could make negotiations between parties more complicated in some cases.

It’s possible that some parties think that if we can’t get a confidentiality agreement, maybe it’s worth going to court and denying the allegations. explains the lawyer.

Lawyer Michaël Lessard also points to a gap in island law.

According to him, the legislation does not take into account confidentiality agreements established outside the settlement process.

For example, employers who, in order to accept a complaint of harassment or sexual assault, ask for a confidentiality agreement when the complaint is filed. The law is not interested in this type of situation. he explains.

For Allison Conway, the island law sets a precedent for the other provinces of Canada.

In Nova Scotia, a bill similar to that on the island is in the process of being drafted.

With information from CBC

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