Initial Considerations

• Author: Daniel Brown/Jill Witkin
• Pages: 1-30

1

Initial

Considerations

1

I. Crown Perspective ........................................ 

A. Bail Stage .......................................... 

B. File Assignment ..................................... 

C. File Review ......................................... 

D. Assessment of Reasonable Prospect of Conviction

andPublic Interest .................................. 

E. Disclosure ......................................... 

F. Victim Contact ...................................... 

II. Defence Perspective ....................................... 

A. Initial Contact ...................................... 

B. First Interview About the Allegations .................... 

C. Client Interview Participants ........................... 

D. Things to Accomplish Before the Client

Leaves the Initial Meeting ............................. 

E. Client Education .................................... 

F. Preserving Evidence ................................. 

G. Obtaining Disclosure ................................ 

H. Witness Interviews .................................. 

I. Psychiatric Assessments .............................. 

J. Mode of Trial and Preliminary Inquiry ................... 

© [2020] Emond Montgomery Publications. All Rights Reserved.

2 Prosecuting and Defending Sexual Oence Cases

I. Crown Perspective

Properly preparing for a sexual oence case begins at the earliest stage of the case and

can be integral to a successful prosecution and a positive experience for the victim.

Never underestimate how much value exists in early file review and victim contact.

These cases involve a serious violation of the victim’s sexual integrity, privacy, and

dignity, and sexual oending poses a significant risk to public safety. Furthermore,

there are unique and complex challenges to sexual oences cases not found in other

prosecutions. Therefore, these cases should be handled sensitively and in as timely a

manner as possible.

A. Bail Stage

. Release Considerations

Under the Criminal Code,1 any form of sexual assault is a serious crime of violence.

As with other such oences, in most cases the accused will be held for a show cause

hearing. In deciding whether the accused should be released on bail, the police will

consider whether there is a continuing concern for the safety of the victim, or other

potential victims. The justice or judge must specifically consider whether the accused

is charged with an oence in which violence was used, threatened, or attempted

against an intimate partner. Sexual oences against an intimate partner will also trig-

ger the accused person to show cause why they should not be detained in custody

(reverse onus) if they have a prior conviction for actual, attempted, or threatened vio-

lence against an intimate partner.2 In most cases, the accused will be held for bail on

the secondary grounds (although there may also be primary and/or tertiary ground

concerns). The Crown must decide whether to seek detention or whether the accused

can be released with an adequate plan in place, possibly involving a surety. If the

accused is released, the Crown should consider the following conditions:

• no contact with the victim, or the victim’s family;

• not to attend within a certain distance of the victim’s residence, employment,

or school, or anywhere else that the accused knows the victim to be;

• no weapons;

• non-attendance at place of oence (e.g., workplace, school, or park);

• [if breach of trust] not to work in any position involving children, disabled

persons, etc.;

• [if child victim] no contact with anyone under 16 years of age; and

1 RSC 1984, c C-46.

2 See ss 515(3)(b) and 515(6)(b.1) of the Criminal Code. “Intimate partner” is defined in s2 of

the Criminal Code and includes a current or former spouse, common law partner, or dating

partner.

© [2020] Emond Montgomery Publications. All Rights Reserved.