Sexual assault cases in Canada are usually very complex legal proceedings and are taken very seriously within the Canadian criminal justice system as a whole. The Criminal Code of Canada, the Canadian Charter of Rights and Freedoms, various provincial statutes, and Canadian case law, govern the procedures for handling such cases, ensuring that the legal process is both thorough and fair.
When an allegation of sexual assault is made, the process begins with a thorough investigation by law enforcement. This is one of many critical stages where the complainant’s allegations are documented, evidence is collected, and any possible witnesses are interviewed. Following this, if the police determine there are reasonable and probable grounds to support the allegations, the police will lay a charge, arrest the accused, and bring them before the courts. The Crown prosecutor represents the interests of the public in pursuing the criminal charges against the accused, presenting evidence and arguments to attempt to demonstrate that the accused committed the offence beyond a reasonable doubt.
At the trial, the complainant and any other relevant crown witnesses will testify regarding the events. The crown may also lead other physical evidence such as DNA evidence, medical records, text/email/social media messages, and photographs etc., which may support the allegations.
The accused has the right to a fair trial, which includes the right to be represented by counsel, to not testify, and to cross-examine witnesses. In most Canadian sexual assault trials, the accused will typically choose to testify in their defence. In some cases, the accused’s lawyer will strategically advise the accused it is not in their best interests to testify or call any defence evidence. A good defence lawyer will always carefully prepare their client to testify well in advance of a sexual assault trial.
At the end of the crown’s case, the defence counsel will assess whether it would increase their client’s chances of winning the trial by having them testify, call other defence witnesses or whether they should exercise their right to remain silent and not call any defence evidence. If defence counsel feels that the crown has not met their burden to prove the allegations beyond a reasonable doubt, they may advise their client not to testify. However, the ultimate decision whether to testify in their defence or call other defence evidence is always the accused’s decision to make, based on the advice of their lawyer. In many “close call” situations, this is a difficult decision to make and only a very experienced and skilled criminal defence counsel is capable of helping their client make this important decision.
The trial is conducted in front of a judge, and sometimes a judge and jury, who must objectively evaluate the evidence and testimonies presented. If the case reaches the end of the trial process, the judge or jury will announce a verdict of guilty or not guilty.
Rights of the Accused and Complainant
Both the accused and the complainant are granted important and fundamental rights under the Canadian Charter of Rights and Freedoms. The accused has the right to remain silent. He or she is presumed innocent and the crown has the burden to prove the accused is guilty beyond a reasonable doubt. The defendant has the right to trial within a reasonable time, and the right to a fair and public hearing by an independent and impartial tribunal. The complainant has the right to privacy and security, including protections against self-incrimination and the right to legal representation.
The Trial Process
The trial process in sexual assault cases is structured and follows complex procedural and evidentiary rules where the prosecutor and defence lawyer present their cases before a judge and sometimes a jury. The ultimate aim of the trial process is to determine whether the accused is guilty or not guilty through the examination and cross-examination of the witnesses. If a judge or jury determines the crown has not met their burden to prove the accused is guilty beyond a reasonable doubt, they must find the accused not guilty.
Ontario Court of Justice and Superior Court of Justice
Depending on the severity and date the sexual assault charges occurred, the crown may elect by indictment. If the sexual assault charges are serious, the crown will usually elect by indictment. Also, if the charges occurred more than one year before the charges are laid, the crown has to elect by indictment. Indictable sexual assault charges carry more severe sentencing penalties, but also will provide the accused with a right to elect their preferred mode of trial. If the crown elects summarily, the trial has to take place in the Ontario Court of Justice and the accused does not have a right to elect their mode of trial. However, If the crown elects by indictment, the accused has the right to elect to be tried by a judge alone in the Ontario Court of Justice, by judge alone in the Superior Court of Justice, or by a judge and jury in the Superior Court of Justice.
If the sexual assault involves an adult, the maximum jail term is 10 years in the penitentiary and the accused does not have the right to a preliminary hearing. However, if the accused is charged with an indictable sexual interference, invitation to sexual touching or sexual exploitation involving a young person, the maximum jail term is 14 years and they also can elect to have a preliminary hearing in the Ontario Court of Justice. The purpose of a preliminary hearing is to screen the charges to determine if there is sufficient evidence to proceed to trial in the Superior Court of Justice. The preliminary hearing also provides an accused with an important discovery right to cross-examine the complainant and potentially other witnesses prior to the trial which can often strategically assist the accused in ultimately being able to win at trial.
Jury Selection
The jury selection process has been streamlined and simplified in Canada in recent years. Both the crown and defence can no longer challenge a potential juror without cause. The defence can still challenge a prospective juror for cause based on racial bias or prejudicial pre-trial publicity, but these types of challenges for cause only apply in rare circumstances. Basically, unless a potential juror has a valid reason for not being able to sit on a jury, the defence and crown are required to accept the first 12 jurors that are randomly selected on the date scheduled for jury selection. The recent amendments to the Criminal Code regarding jury selection procedure have greatly limited the accused’s ability to challenge a juror who is called for jury duty. Before the amendments, both defence counsel and the crown were able to challenge a set number of prospective jurors without cause (i.e., without providing a reason). Therefore, a potential juror who was challenged without cause by either the defence or crown did not become one of the 12 jurors for the trial.
Some legal commentators have opined that the amendments in question have taken away a very important right of the accused where they were previously able to challenge prospective jurors without cause with the goal of selecting a more impartial or favorable jury.
Presentation of Evidence
Evidence presented during a sexual assault trial must adhere to the rules of evidence to be deemed admissible. This includes:
- Direct Evidence: Testimony of a person who claims to have personal knowledge of the crime.
- Circumstantial Evidence: Indirect evidence suggesting the accused is guilty.
- Physical Evidence: Tangible items connected to the crime scene or case such as DNA evidence
Both the crown and defence can introduce evidence, provided it is relevant and is admissible under the Canadian Criminal Code and the rules of evidence.
Cross-Examination and Closing Arguments
After the Crown or defence calls a witness to testify in examination- in-chief the opposing party has the right to cross-examine the witness to test their credibility and the reliability. The party who called a witness in examination-in-chief, also has a right to re-examine their witness upon completion of the cross-examination. This allows the judge or jury to hear all perspectives and consider inconsistencies, improbabilities, or matters which do not accord with logic or common sense which may demonstrate the witness is not credible (i.e., believable) or reliable (i.e., accurate). Conversely, a witness may come across as credible and reliable both during examination-in-chief and cross-examination. It is up to the judge or jury to determine what facts they find to be true and accurate beyond a reasonable doubt after considering all of the trial evidence as a whole. Closing arguments are the final opportunity for both sides to summarize their cases. The prosecutor and defence lawyer will highlight key evidence and attempt to persuade the judge or jury of their respective positions regarding the accused’s guilt or innocence. Experienced defence counsel are often able to present compelling and persuasive and sometimes entertaining arguments (i.e., especially in a jury trial) which can often lead to a dismissal of the charges in a judge alone trial or a not guilty verdict in a jury trial.