What to Expect in the Court Process for Survivors of Sexual Assault in Canada

Initial Reporting: The process typically begins with the survivor reporting the incident to the police. Survivors can file a report at any police station or through a specialized sexual assault unit, which may provide additional support and expertise.

• Example: A survivor may choose to visit a local police station or contact a dedicated sexual assault unit to report the incident. Officers trained in trauma-informed care will take their statement, ensuring they feel safe and supported. In many jurisdictions, such as Toronto, the police may also have a specialized Sexual Assault and Domestic Violence unit.

Once the report is filed, the police will conduct an investigation. This may involve:

• Gathering Evidence: Collecting physical evidence from the crime scene (if applicable), including DNA, clothing, or other relevant items.
• Witness Interviews: Speaking to any potential witnesses who may have observed the incident or can provide supporting information.
• Survivor Statements: The survivor may be asked to provide a detailed statement about the assault, which will be recorded and used during the investigation and trial.
• Example: If the survivor mentioned that a friend was present during the assault, the police may reach out to that friend for an interview. Under the Police Services Act, officers must conduct a thorough investigation and keep the survivor informed about the progress of the case.

Disclosure: Prior to the trial, both the Crown (prosecution) and defense must disclose evidence to each other. This includes witness lists, documents, and any physical evidence that may be presented during the trial. The obligation to disclose is rooted in the principles of fairness and justice outlined in the Criminal Code which mandates that both parties have equal access to the evidence.

• Example: If the survivor provided a medical report that documents physical injuries or trauma, this report would be shared with the defense to ensure both parties have access to relevant evidence.
• Preliminary Hearing: In serious cases, a preliminary hearing may be held to determine if there is enough evidence for the case to proceed to trial. This hearing is typically conducted in front of a judge, who evaluates the evidence presented by the Crown.
• Example: During the preliminary hearing, the Crown may present witness testimony and physical evidence. If the judge finds that there is insufficient evidence to support the charges, they may dismiss the case. This can be particularly challenging for the survivor, as it may feel like a denial of justice.
• Deciding to Proceed: If the judge determines that there is enough evidence, the case will move forward to trial. The survivor will be notified of the next steps and may receive updates about the timeline.

Both the Crown and defense will present their opening statements, outlining their case and the evidence they intend to prove.

• Example: The Crown may begin by summarizing the survivor's testimony, highlighting the impact of the assault on their life, and emphasizing the importance of accountability for the accused. Conversely, the defense may outline their strategy, indicating their intention to challenge the survivor’s account.

Survivors are often called to testify about their experience. The Crown will question the survivor first, followed by cross-examination from the defense, which can be intense and challenging.

• Example: A survivor may describe the events of the assault in detail, recounting specific interactions and their emotional state. The defense may follow up with questions designed to challenge their memory or consistency, such as asking about the survivor’s actions before and after the incident. The Canada Evidence Act allows for certain protections regarding how a witness's prior sexual history can be used, which can be particularly relevant in sexual assault cases.

This phase can be particularly daunting, as the defense may attempt to undermine the survivor’s credibility. It’s important for survivors to remember that this questioning is not a reflection of their worth but rather a part of the legal strategy.

• Example: The defense might ask, “Why didn’t you report the incident immediately?” or “Were you drinking that night?” These questions can be distressing but are meant to provoke a reaction or highlight perceived inconsistencies.

For more information about preparation for cross examination, click here. 

After all evidence has been presented, both sides will make their closing arguments. This is their opportunity to summarize their cases and urge the judge or jury to reach a specific verdict.

• Example: The Crown might emphasize the importance of believing survivors and the need for justice, appealing to the jury’s sense of responsibility. The defense may focus on reasonable doubt, arguing that the evidence presented does not conclusively prove the accused's guilt.

The judge or jury will deliberate and reach a verdict. In criminal cases, the standard is "beyond a reasonable doubt," as outlined in the Criminal Code. A guilty verdict means the accused is convicted, while a not guilty verdict means the charges are dismissed.

• Example: If the jury finds the accused guilty, they may express relief, knowing that justice has been served. Conversely, if the verdict is not guilty, the survivor may experience feelings of disappointment, anger, or confusion, and it’s important to seek support during this time.

If the accused is found guilty, a separate sentencing hearing will occur. The judge considers various factors during sentencing, including the severity of the crime, the impact on the survivor, and any previous criminal history of the accused, as outlined in the Criminal Code.

• Example: During the sentencing hearing, the Crown may present evidence of the emotional and psychological impact on the survivor, possibly including a victim impact statement. The defense may present mitigating factors, such as the accused's background or lack of prior offenses.

Survivors have the right to provide a victim impact statement during sentencing. This statement allows survivors to express how the crime has affected their lives, including emotional, physical, and financial impacts. The Criminal Code provides for this right.

• Example: A survivor may describe in their statement how the assault has affected their ability to work, their relationships with family and friends, and their overall mental health. This personal testimony can influence the judge's sentencing decision.

Depending on the circumstances of the case, sentencing options may vary widely. Sentences can include prison time, probation, mandatory counseling, or community service.

• Example: For a conviction of sexual assault, the judge may impose a prison sentence of several years, along with mandatory registration on the National Sex Offender Registry, as required by the Sex Offender Information Registration Act.

• Obligation: If a mandatory publication ban is requested, the court must order it.
• Applicability: Mandatory bans apply specifically to:
• Victims of sexual offenses.
• Witnesses under the age of 18 who testify in cases involving sexual offenses.
• All victims who are under the age of 18, regardless of the nature of the offense.
• Notification: In all instances, victims and witnesses must be informed by the prosecutor of their right to request the revocation or modification of the publication ban.

This framework ensures that the privacy of vulnerable individuals, particularly minors and victims of sexual crimes, is safeguarded during legal proceedings

Survivors have the right to share their experiences publicly. However, there are important considerations:

Defamation Risks: While sharing your story can be empowering, be cautious not to make false statements about the accused that could be considered slander or defamation. If statements made are deemed untrue and damaging, legal consequences could follow.

• Example: If a survivor were to publicly accuse someone of a crime without evidence, they might face legal action for defamation, even if their intentions were to seek justice.

Court Orders: Be aware of any court orders that may limit what can be disclosed. For instance, if there’s a publication ban in place, you cannot discuss certain details of the case publicly until the ban is lifted.

If media coverage is involved, survivors may want to discuss how to handle inquiries with their legal counsel. Survivors should feel empowered to set boundaries with the media regarding what they are comfortable sharing.

• Example: If a news outlet approaches you for a story, you can decline the interview or specify what information you’re comfortable discussing.

Court Orders: Be aware of any court orders that may limit what can be disclosed. For instance, if there’s a publication ban in place, you cannot discuss certain details of the case publicly until the ban is lifted.