Preface

• Author: Daniel Brown/Jill Witkin
• Pages: 27-28

xxvii

Preface

Trials involving sexual oences are challenging for all parties involved. The victim is

expected to testify about embarrassing and emotional details, and cross-examination

can be lengthy. The accused faces the prospect of a significant jail sentence, collection

of DNA, compliance with the Sex Oender Registry and the stigma that goes along

with being charged with a sexual oence. This is an intricate area of the law with num-

erous evidentiary rules unique to sexual oences. There is often no corroborative

evidence. There is often much public scrutiny. For lawyers and judges, these are the

cases that keep us up at night.

Crown and defence counsel each have a fundamental yet unique role in the crim-

inal justice system. The Crown is an advocate with an obligation to pursue justice and

not simply a conviction, and it needs to understand the legal and procedural land-

scape in order to properly exercise its discretion, and assess, shape, and present a

prosecution. Defence counsel has the duty to vigorously defend its client but must

also know how to present its case within the boundaries of what is ethically and legally

permissible. Most important, all counsel should understand how to run an error-free

trial.

This book covers the anatomy of a sexual assault trial, from arrest right up to sen-

tencing. We cover the legal, evidentiary, and procedural issues encountered at each

stage of the process, including bail, publication bans, third-party and private records,

sexual history evidence of the complainant, consent, and expert evidence. We discuss

protections for victims and witnesses, including those emanating from the 2015

Canadian Victims Bill of Rights and from recent amendments to the Criminal Code in

Bill C-51 and Bill C-75. This book also provides assistance with prosecuting and

defending historical sexual oence allegations. Throughout the book, we analyze case

law and relevant Criminal Code provisions against the backdrop of historical pre-

cedent and social policy. Where appropriate, we oer practical and strategic advice for

counsel. We do not purport tobe exhaustive in any one area, nor do we cover every

possible issue that could arise. Our goal is to adequately resource those who practise

in the area of sexual oences.

In 2015, the Canadian Victims Bill of Rights and the Criminal Code redefined the

term “victim” to mean “an individual who has suffered physical or emotional

harm,property damage or economic loss as the result of the commission or alleged

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