Initial Considerations

• Author: Brian H. Greenspan/Vincenzo Rondinelli/Daniel Brown/Jill Witkin
• Pages: 1-31

1

Initial

Considerations

1

I. Crown Perspective ........................................ 2

A. Bail Stage .......................................... 2

B. File Assignment ..................................... 5

C. File Review ......................................... 5

D. Assessment of Reasonable Prospect of Conviction

andPublicInterest .................................. 10

E. Disclosure ......................................... 13

F. Victim Contact ...................................... 14

II. Defence Perspective ....................................... 17

A. Initial Contact ...................................... 18

B. First Interview About the Allegations .................... 22

C. Client Interview Participants ........................... 23

D. Things to Accomplish Before the Client Leaves

the Initial Meeting ................................... 23

E. Client Education .................................... 24

F. Preserving Evidence ................................. 24

G. Obtaining Disclosure ................................ 26

H. Witness Interviews .................................. 28

I. Psychiatric Assessments .............................. 28

J. Mode of Trial and Preliminary Inquiry ................... 29

© 2024 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

1. 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 hear-

ing. 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 vic-

tims. 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 inti-

mate partner. Sexual oences against an intimate partner will also trigger 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 violence against an inti-

mate partner.2 In some cases of tracking in persons involving sexual exploitation and

pimping cases, a reverse onus may be applicable if the oence was a serious oence

alleged to have been committed for the benefit of, at the direction of, or in association

with a criminal organization.3 In most cases, the accused will be held for bail on the

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

cerns). 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;

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.

3 Criminal Code, s 515(6)(a)(ii).

© 2024 Emond Montgomery Publications. All Rights Reserved.