THE BLOG

What if Rehtaeh Parsons Had Taken the Law into Her Own Hands?

08/31/2013 08:05 EDT | Updated 10/30/2013 05:12 EDT

Like most of us, I was shocked to read about the tragic death of Rehtaeh Parsons and the alleged gang rape, cyber bullying, and child pornography victimization that apparently led to her taking her own young life. The family pictures posted online of her will remain with me in my memory as they will with many other people worldwide. I admit that I cried while reading her story as penned by her own father.

Of particular anguish to her, her family and friends, her community, and now the public, has been the alleged inaction of the police services and failure of the criminal justice system in this case. I cannot at this time comment on either of those frustrations, other than to say that if everything alleged is true, then it is proper that an independent investigation be commenced.

However, I am able to comment on the part this story that as of yet has gone unreported (or, at least, under-reported).

Keeping in mind that the Canadian justice system, like most modern democracies, is split into two (the criminal justice system and the civil justice system) the focus of most, if not all, that has been written and said about this case has been with reference to the alleged failure of the criminal justice system. Naturally, this makes sense since the allegations, if true, almost certainly indicate criminal behaviour.

The criminal justice system in Canada (which includes the police) has a much higher and more stringent standard of proof than does the civil justice system. Again, this makes sense because otherwise Canada would be a police state. It is not clear yet, but a formal investigation may reveal that either the police services or the Crown prosecutors (or both) were not satisfied that the allegations could be proven in court pursuant to the criminal standard. Keep in mind that the criminal justice system in Canada does not represent the victim but, rather, it represents society. This is why Canadian criminal cases are titled "R v [Insert_Name_Here]", with "R" standing for "Regina", the Queen (meaning the Queen on behalf of the people of Canada, on behalf of the Canadian state, versus the accused). Yet again, this is rightfully so, otherwise the criminal justice system would become privatized and the administration of justice would become dependent upon the personal and possibly the financial relationship dynamic between police, prosecutors, and their clients (otherwise today referred to as the victims).

But the story of the Canadian justice system does not end there.

The other half of the Canadian justice system is the civil justice system. It is the civil justice system, with a lower standard of proof, that allows private individuals (such as Rehtaeh Parsons and her family) to seek justice and redress from those who have injured them. The civil justice system does not require the police to investigate and lay charges, nor does it require prosecutors to determine that prosecuting the charge is in the best interest of justice, in particular, and society in general. Instead, any wronged party may, themselves, file a claim against those who have injured them and have their day in court.

It should also be noted, that the criminal justice system and the civil justice system are not mutually exclusive. That is to say, that any person who has been injured by another may seek redress from the civil justice system notwithstanding that the same case (or aspects to the same case) is also within the criminal justice system, or vice versa. Moreover, this means that the fact that the allegations, if true, would be a crime, does not prevent the injured party from also seeking compensation and redress for the injuries by means of the civil justice system.

Because in the civil justice system parties represent themselves (or, as is more likely, lawyers represent them), how, when, and whether the case is prosecuted is entirely dependent upon the injured parties themselves (or their lawyers). A further advantage of using the civil justice system is that your lawyer represents you and only you. In the civil justice system, your lawyer works in your best interest and will fight to maximize the results in your favour; whereas in the criminal justice system, the injured party (victim) is only a witness and the Crown prosecutors are not concerned with maximizing the best interests of the injured party, but, rather, the best interests of the state.

All modern democratic societies allow individuals to prosecute their own civil cases (through their lawyers) in the civil justice system. This is an evolution from those days when parties took disputes into their own hands and resolved them through violence. Rather than having a society where people resort to violence in redressing injurious wrongs, we have developed the civil justice system so that parties that have been injured can seek redress and compensation from the injuring party through the courts. This is an incredible power that each and every one of us has the right to wield and should neither be ignored nor subsumed under the (admittedly strong) desire of proceeding through the criminal justice system.

I cannot advise the Parsons family, as I am not their lawyer, nor do I know whether any of what I have described above was done in their situation. However, if a similar situation was brought to my attention, I, as acting lawyer for the victim, would immediately put all parties on notice, and commence the steps necessary to litigate through the civil justice system. I would do so aggressively and relentlessly, expecting that such legal actions would dampen, discourage and/or eliminate any further cyber-bullying or victimization. I would also immediately put the school and the school board on notice such that they would be under as much pressure as can be brought to bear upon them to cooperate fully and to do all in their power to protect, promote, and preserve the safety and best interests of my client, the victim. As the victim's legal advocate, I would do all of this, and more, as the proven legal strategy remains that such steps and legal actions almost certainly and immediately bear fruit.

In addition, I would do all of this in the sole interest of my client (the victim) and only in her/his interest with no other consideration for any other party (other than to ensure that all that I did was legal and within the principles of justice), because as my client's lawyer, I act as their advocate, and only as their advocate. I am their agent.

It would be expected and hoped that advocacy of this sort would generate for my client, the victim, a palpable sense of empowerment instead of frustration, despondency, and feelings of powerlessness. I would be both the shield to protect my client (the victim) from further injury and the sword by which my client (the victim) could fight back against all those that victimized her, and those that stood by and let it happen (and, thus, participated actively or inactively in the victimization).

It is impossible to know for certain, but I do not believe that it is a stretch of the imagination to suspect that when Rehtaeh Parsons felt that the criminal justice system had failed her, that consequential sense of powerlessness contributed to her ultimate decision to take her own life.

If I were her lawyer in the civil justice system, I would do all in my power to ensure that rather than feeling powerless, Rehtaeh Parsons felt empowered.

Oh, and to the limits possible, I would ensure that I advocated just as aggressively for her rights in my contact with the police.

This article is not intended to second guess anything that Rehtaeh Parsons and her family may or may not have attempted to do in redressing the wrongs she suffered. In fact, I simply do not know whether or not the civil law outside of the criminal justice system was utilized (or at least attempted to be utilized) by anyone involved in this tragedy. If it was, it has not been widely reported and has escaped my attention. If it was not, this article is still not intended as a critique of that particular tragedy and all those involved. I myself was not involved and therefore have no right nor any knowledge to make an informed comment one way or the other.

Rather, this article is meant to provide inspiration and information on how victims and their families, friends, and loved ones can "take the law into their own hands" and utilize our legal system to redress the wrongs they have suffered and to be compensated for their injuries.

Cyber bullying (in particular) and online defamation are phenomena whose prevalence is growing exponentially throughout our increasingly wired world. Social media, and all of the million ways the internet now connects us instantaneously, and often anonymously, has radically changed our entire social dynamic. To date, that social dynamic has been almost entirely favourable to perpetrators who absolve their conscience of the moral gravity of their actions because of the apparent anonymity and transient nature of their online activity. Yet, it is that instant, anonymous, global reach (that is forever cached in some corner of the internet) that continues to exacerbate the injuries suffered by victims of online defamation and cyber bullying.

In some instances, such as is alleged in this case, perpetrators of offline injuries have then used online tools to further continuously and repeatedly injure the same victims.

There are two means to rebalance this dynamic in favour of victims: The first, as almost all of us agree, is for the criminal justice system to enter the 21st century and acknowledge the gravity of online victimization, respond accordingly, and utilize the sanctions available by law to redress these wrongs and punish the wrongdoers; the second is for individuals to should utilize the civil justice system on their own to redress those same wrongs and to be compensated for those same injuries.

My hope is that anyone reading or hearing about this article will realize that instead of remaining disempowered as the criminal justice system determines whether or not (and how) to charge perpetrators of these and other crimes, victims, their families, and loved ones should, at the same time, consider taking those decisions into their own hands and empowering themselves, by utilizing the civil justice system to seek redress of those wrongs and compensation for those injuries.

I hope that all of us realize that we have the right to take the law into our own hands.

Rehtaeh Parsons: A Life In Photos