A recent court decision confirms that survivors still deserve protection from retaliatory lawsuits if they choose to report sexual assaults to police, even where the survivor’s evidence is later found unreliable by the criminal courts.
In the recent decision of Emma Joyce Jansen et al v. J.T et al, 2026 ONSC 1304, the accused was charged with sexually assaulting survivor, named only as J.T. pursuant to a court-ordered publication ban on her identity. The accused was acquitted of the charges after a trial. At the conclusion of the trial, the judge ruled that that J.T.’s evidence at the criminal trial was “untrue, contrived, and unworthy of belief.”
The former accused then commenced a lawsuit against J.T., in which she sued J.T. for malicious prosecution. Other parties were named, that are not relevant to this commentary. In response, J.T. brought an Anti-SLAPP motion seeking, among other things, to have the former accused’s lawsuit dismissed.
An Anti-SLAPP motion is a special tool used to dismiss “S.L.A.P.P.s”, or “Strategic Lawsuits Against Public Participation.” “SLAPPs” are a type of lawsuits typically initiated by a powerful party with the purpose of intimidating, censoring, and silencing persons speaking out about issues of public interest. Sometimes they are known as “gag” lawsuits. These sorts of lawsuits have been used repeatedly against survivors across Canada in an attempt to silence survivors who have bravely come forward against their abusers. In enacting anti-SLAPP legislation, the Ontario legislature acknowledged that lawsuits against survivors for coming forward can have a major “chilling effect”, since these lawsuits put survivors at risk of being sued for damages by their abusers.
To determine if a case against a survivor should be dismissed, a court must carry out a three-stage legal analysis. First, the court reviews the “nature of the expression” to determine if the survivor’s words are a “matter of public interest”. If so found, then the alleged abuser must prove that the lawsuit is not a “SLAPP”, by proving their claim against the survivor has “substantial merit” and that the survivor has “no valid defence”. Such an assessment is done on a preliminary basis only, and is not meant to be a full review the case. If the alleged abuser cannot prove their case at this preliminary stage, the survivor must then prove that the public interest in receiving the expression outweighs the private interest
In this case, J.T. was sued for reporting the alleged sexual assault to the police.
At the first step, courts have made various decisions on this issue; these decisions are often categorized based on the recipient of the survivor’s words. Here, the court readily acknowledged that numerous cases have concluded that reports about alleged sexual abuse to the police, regulatory bodies, or on social media are expressions on a matter of public interest (see para 25), and are thus deserving of protection from SLAPPs.
The court then moved on to the second part of the test, to determine if the former accused’s claim that she had been defamed had “substantial merit”. The analysis as to whether the claim had “substantial merit” is critical to understand why this case is so important.
In the criminal trial, the criminal judge found J.T.’s evidence to be “untrue, contrived, and unworthy of belief”. As a result, the civil judge was required to accept as a legal fact for the purposes of the motion that J.T.’s claim was false. Based on the “false” report, the plaintiff asked the judge to infer that J.T. had acted with malice. No other evidence was provided to prove that J.T. had acted with malice. Of material note, there was evidence presented on the motion that J.T. had a history of being “disruptive” as a child, including around the time when the abuse was occurring, when J.T. was 12 years old. The Plaintiff argued that this should support the inference that J.T. acted with malice.
Despite the criminal judge’s conclusion and J.T.’s history, the civil judge did not find that J.T.’s “false report” and her “disruptive history” interfered with the criminal legal. In short, the judge concluded that even if J.T. allegedly made a “false” police complaint, that not going to be held against her.
This is a big win for survivors. It confirms that some rape myths (especially the myth of the “good victim” and the “vindictive woman”) carry little weight in a court of law.
The court also ruled that survivors reports to police, even if later found “false”, are likely deserving of protection from these sorts of lawsuits. Specifically, the judge found as follows:
“[61] The subject matter of the expression, an allegation of sexual assault on a child by a person in a position of trust, relates to an issue of public interest and is plainly worthy of protection. Permitting the plaintiffs’ action to proceed against J.T. would have a chilling effect on victims of sexual assault and would fly in the face of changes in the law relating to the investigation and prosecution of sexually based offences...
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[66] While the civil justice system is in place to ensure that individuals can hold others accountable for wrongdoing, the fact that J.T. was 16 years old when they made their complaint to the police affects my assessment of the extent to which there is a public interest in permitting this action to proceed against J.T. As a minor when the events that give rise to this action occurred, J.T. required a court-appointed litigation guardian to make decisions in relation to the litigation on their behalf. Instead of proceeding in this manner, the plaintiffs waited until J.T. turned 18 and served them shortly after their 18th birthday. The effect of this strategic decision was not to improve the plaintiffs’ position in the action on the merits. Rather, it had the effect of requiring an 18-year-old to undertake their own defence to the action. This strategic decision reflects a desire to make this litigation as difficult for J.T. as possible, and to use the court process to “hold [them] accountable,” regardless of whatever the ultimate outcome of the litigation may be.”
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[68] [H]aving regard to what is really going on in this litigation, and the chilling effect that permitting this action to continue against J.T. would have on all victims of sexual assault, and children in particular, I would dismiss the plaintiff’s claim because allowing the action to continue does not outweigh its deleterious effects on expression and public participation.”
This case is a clear message to persons considering suing survivors, not to start such a lawsuit for the purpose of intimidating a survivor only. Courts will not allow such actions to continue.
Congratulations to the lawyers who successfully argued the case and achieved such an excellent outcome.