Criminal & Civil Court

Reporting a sexual assault and the subsequent criminal or civil process is a frightening and intimidating experience. Survivors should be aware that the legal process is long and painful. It may take months or years to conclude, especially if there is an appeal. Giving evidence is highly emotional and challenging for the survivor. The need for good support cannot be overstated.

How you might feel

Navigating the legal process can be liberating and empowering or really difficult. It may be both. Many people enter into the legal system thinking that criminal or civil proceedings will give them closure and healing from their trauma. This is often not the case. Criminal proceedings hold people accountable for criminal actions. Civil litigation holds abusers economically responsible for the damages incurred. It is important to understand the limitations of the legal process. While the experience may provide a sense of vindication and of being believed, survivors often come out feeling raw, vulnerable and exploited. They also may feel dissatisfied with the outcome. Often the impact of the proceedings will not be felt for some time after the proceedings have ended. It is important to have ongoing support that is sensitive to the impact of the legal process and the emotional upheaval it can invoke. This support should be available for as long as necessary.

Consider your options

Consulting someone who has gone through the legal process can help inform your decisions on how to best move forward. It’s important to choose someone who has a sound level of healing in place. This allows the person to give good non-biased input as well as unconditional support.

There is no time limit to report sexual assault or sexual abuse so you can do so as an adult even if the abuse happened when you were a child. But in the case of the civil litigation process to initiate legal proceedings as soon as possible after recognizing the damages you have suffered were as a result of the sexual abuse you endured. This will help your case with any possible statute of limitation issues and arguments the defendants may make claiming that you, the plaintiff, waited too long to take legal action.

Not reporting the abuse ensures that your perpetrator will not be held accountable. Many survivors live to regret not reporting the abuse they’ve suffered; others regret that they did in fact report. This is a highly personal decision and there is no right or wrong choice. Exploring your options and objectives fully before any decisions are made is critical. Your well-being needs to be the deciding factor.

The criminal justice process

Survivors who decide to report sexual abuse have no control with how the investigation unfolds. Once you report the crime the legal process is initiated. If the Police feel there is sufficient evidence of a criminal act charges are laid. If the Crown Attorney believes there is a reasonable prospect of conviction they will move ahead with a trial. For survivors that only want acknowledgement of the abuse and an apology it can be overwhelming when the criminal justice machine takes over. For others the decision not to pursue criminal charges or a trial by the Police or the Crown Attorney will be troubling. As well many survivors have had negative experiences with the legal system and people in positions of authority. The abuse they’ve suffered makes trusting difficult.

Have a good support system

It’s critical to make sure that you have proper supports in place to navigate the legal process that will provide good, unbiased input. There are victim supports available while involved with the criminal justice system. However these supports are limited in scope and end as soon as the legal process ends. Having an experienced peer support person or a trusted person to assist you is extremely valuable. Ideally they will provide ongoing support at meetings with lawyers, clerks and the Crown Attorney. They also will advocate for your needs during the process providing a second set of ears for details that you may not hear because you’re overwhelmed and anxious. Additionally they will ensure you are not pressured or rushed to commit to anything. Encouraging you to take the time necessary to make informed decisions ensures that the actions chosen are in your best interests and fair.

Seek good legal advice

There are many good ethical lawyers, however unfortunately there are also many unscrupulous ones that place a priority on making the most money possible exploiting the survivor to do so. It’s critical to get a responsible lawyer and negotiate a clear contractual agreement that is fair to you. In order to ensure that you get good results with civil litigation you are well advised to speak with a number of law firms and choose the one that meets your needs and that you are most comfortable with.

It’s important that the chosen legal team have:

• The legal expertise necessary
• Understand the needs of sexual abuse survivors
• Have the resources and commitment to see the case to its conclusion.

It’s also important to know that although you may have signed a retainer agreement with a law firm you are not obligated to stay with them. If you are not happy with them it is a relatively simple matter to obtain new counsel that will guide you and protect the fees of your previous law firm. You will not be required to pay money to transfer your case.

Sexual Assault in Canada's Criminal Code

In the Canadian Criminal Code sexual assault includes both physical contact and threats. Section 265 states that a person commits an assault when:

• Without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
• He attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
• While openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

Children are also protected by child-specific offences in the Criminal Code. These offences include sexual interference (section 151), invitation to sexual touching (section 152), sexual exploitation (section 153), incest (section 155), child pornography (section 163.1), luring a child including Internet luring (section 172.1), exposure (subsection 173 (2)), procuring (sections 170, 171, 212 (2) and 212 (4), bestiality (section 160), child sex tourism (subsections 7 (4.1) – 7 (4.3).

Each of these offenses, if convicted, may result in varying mandatory minimum periods of imprisonment. For more information see the Department of Justice fact sheet at http://www.justice.gc.ca/eng/rp-pr/other-autre/clp/faq.html

Consent

Consent is an important issue in many sexual assault crimes. The Canadian Criminal Code does recognize some circumstances where consent doesn’t happen including when:

• Force or threats of force are used on the person to get them to submit;
• Fraud or coercion is used, or;
• If the abuser is in a position of authority.

Consent gets more complicated when alcohol and drugs are involved because it becomes a question of whether the victim had the ability to consent. Another issue is whether the accused believed that the victim consented and if it was implied rather than clearly stated. But for the most part in considering evidence, the absence of no does not mean yes. But it often comes down to the testimony of both the victim and the accused and who is believed to be the more credible witness. If you will be testifying in a court case your lawyer will help prepare you in advance for what you might encounter in cross examination.

Age of Consent

The age of consent for sexual activity in Canada is now 16 years old. By law, adults (18 or older) can’t have sexual relations with anyone under 16.

But there are peer group exceptions so that youth close in age aren’t charged with a criminal offence when it’s consensual. The rules say that it’s not a criminal offence if:

• A young person aged 14-15 consents to sexual activity with someone less than 5 years older;
• A young person aged 12 or 13 consents to sexual activity with someone less than 2 years older.

These exceptions only apply if the older person is not in a position of authority or trust and there is no exploitation or coercion.

Also, the law is clear that adults cannot have sexual relations with a person aged 16 or 17 within a relationship of trust, authority, dependency, or where there is other exploitation. This could include coaches, teachers, and employers, among others. As well, 16 and 17 year olds can’t consent to sexual activity that involves prostitution or pornography.

The law is clear that young people under the age of 12 can never give consent at all.

Evidence in Sexual Assault Trials

In most sexual assault or childhood sexual abuse trials, the evidence presented consists mostly of witness testimony. This usually includes the victim, the accused, and any other participants or witnesses. Unlike the victim, the accused has a right not to take the stand and testify under the Canadian Charter of Rights and Freedoms.

The rape shield law has been changed so that the victim’s prior sexual history can be entered into evidence only under very specific circumstances. In the past this was used to intimidate the victim and destroy their credibility.

If there is physical or medical evidence (like a sexual assault evidence kit including bodily fluids or DNA), expert witnesses may be called to testify about this evidence. Also, if there are photos – including cell phone – or video, this can be entered into evidence too. Medical reports detailing the psychological trauma that the survivor has suffered will also be considered.

Sentencing

Sentencing in sexual assault cases varies and depends on whether the accused has prior records, the circumstances, as well as whether it was an aggravated sexual assault. This means that the accused wounded or endangered the life of the victim. Stronger sentences are sometimes also given if a weapon was used during the assault.

Victim Impact Statements

Victims of sexual assault and abuse have the right to prepare and deliver a victim impact statement during sentencing. These can be emotionally raw and can be difficult to read and for others in the court room to hear. But they can also be empowering for victims as some people report feeling heard and having the devastating effects of the abuse recognized. This is one of the things that the Victim/Witness Assistance Program will support a survivor in preparing. Often it is the victim themselves who reads it but if they are not able to do so for whatever reason it can be read by someone else. A victim impact statement might not have a direct effect on sentencing or parole but may have an indirect effect including consideration of the risk posed by the accused.

What You Might Feel During the Criminal Court Process

Victims should be aware that defence lawyers may try to delay the trial process by requesting adjournments in the hopes that the victim and any other witnesses will forget important details of the crime. Also, they may try to discredit your testimony by bringing up past sexual encounters or drug or alcohol use, etc. This can be extremely difficult, even traumatic. Defence lawyers will also compare different statements. If you told a different story to the police than you tell on the stand, the defence may argue that you have little credibility and shouldn’t be believed. To prepare you better, the Crown may give you a transcript of your original statement to review before testifying. This can help refresh your memory and avoid any inconsistent statements on the stand.

Depending on the case, it can take several months or a couple of years especially if there are appeals. The long wait can be really hard on you. Regardless what services the courts provide, it’s critical that the survivor engage a solid support system to guide them through this process. You can’t rely on the system as supports end as soon as your trial does.

After the trial survivors often go on auto pilot to get through especially if it’s been a long process. Having been the centre of attention during the trial, you may feel supported and empowered. But when the system supports end you can feel like you’re in a vacuum and some survivors may free fall for a while. The trial is done but nothing has really changed in your life. You’re still a hurt and wounded person and you may also feel like you’ve been exploited again, this time by the system. It can be very anti-climactic if you went into it believing that the trial would give you some restorative value. For some survivors that does happen, but for others it doesn’t. Sometimes relationships can also be broken especially if the abuse happened with a family member or friend. That’s why having good support is so crucial at the beginning, during, and after your case is completed.

Civil Court

Survivors of sexual abuse have the ability to sue their abuser and potentially their employer by way of a civil action in order to receive compensation for their damages. A civil lawsuit doesn’t always lead to going to court. Most cases are resolved prior to trial. It’s important to know that you can bring a civil lawsuit against your abuser even if you didn’t file charges or go through the criminal justice process.

The burden of proof in civil court is different than in criminal court. In a criminal trial the liability or guilt needs to be proved “beyond a reasonable doubt”, in a civil trial the standard of proof is a “balance of probabilities”, which means that the abuse was more likely than not to have happened.

It is important to know that the civil remedy can only award money for damages. However in a successful civil settlement you may be able to negotiate other things as well. Following the civil case, survivors may still be in crisis which is why a good support system is necessary. Many will navigate the civil process seeing the outcome as the end when in fact the journey of confronting the abuse is just beginning.

It is not uncommon for survivors to feel guilty or ashamed in taking money for the abuse they have suffered. You may get pressure or judgmental comments especially if your abuser is a family member. The purpose of civil litigation is to compensate people for the damages they have suffered as a result of the sexual abuse they endured. Civil litigation is about holding the person who abused you accountable for those damages. It is not a lottery win.

If you were abused by a priest or other religious official, government employee, dentist, doctor or another professional, there may also be sanctions that can be placed on them by their governing body. Regardless of who your abuser is, it’s important to get good legal advice from more than one lawyer or law firm. Again have a good and knowledgeable support person with you during legal meetings to help you stay focused and to get the information that you may not be able to process.

Legal Representation

It is extremely important not to enter into settlement negotiations or discussions with the abuser or their employers directly. Such actions may impede your future legal options. Legal counsel should deal with these matters at all times. In the event that you wish to be anonymous this should be discussed with your legal team early in the action. Publication bans are common with sexual abuse litigation.

Financial Compensation

No amount of money will ever compensate a survivor for the pain and devastation of sexual abuse. If the case is successful, a survivor may receive compensation for pain and suffering, future income loss, reduction in earning capacity, and punitive damages. This includes emotional damage from the assault that causes someone to drop out of school and not pursue a path that would have led to a higher income. As well it might make the person less able to work or advance in their profession. While each province has a limit for when victims of sexual abuse can sue for damages, in cases like childhood sexual abuse there are extensions. In many instances, the case is settled out of court which resolves things much sooner and can be less damaging for the survivor. Sometimes the civil suit is settled through arbitration or mediation, where a third party helps both sides work out and resolve the case.

Lawyer's Fees

Sometimes people worry that they can’t afford a lawyer. But most personal injury litigation lawyers do business on a contingency fee basis. This means the lawyer will receive a percentage of the final settlement or award but won’t charge you upfront. The lawyer’s fee can vary widely which is why it’s so important to seek advice from more than one lawyer and to make sure that you negotiate a fair deal. While there are good victim-centred lawyers who operate with integrity and appreciate the unique needs of survivors, there are also unscrupulous lawyers who will exploit survivors for their own financial benefit.

The advantage of a contingency fee is that the survivor doesn’t have to come up with a lot of money to pay an hourly fee to their lawyer. If you lose the case then no legal fees are owed. However, any case involves disbursements (filing or service fees, medical reports etc.) and while the lawyer will usually cover these from the award, if you lose the case you may be responsible for covering some of these costs. Ask up front how things will work so that you know what to expect. And make sure you sign a clear contractual agreement so there are no surprises.

Regardless of whether the case was covered on a contingency fee arrangement or straight billed, all legal bills are subject to assessment in order to make sure they are fair.