Representing the Victim in a Sexual Offence Proceeding

• Author: Daniel Brown/Jill Witkin
• Pages: 505-522



17

Representing

the Victim in a

Sexual Oence

Proceeding

I. Introduction ............................................. 

II. Who Are Sexual Assault Victims? ............................ 

III. Barriers to Representation .................................. 

IV. When a Victim Might Choose to Be Represented ............... 

V. The First Meeting ......................................... 

VI. Role of the Various Players in a Criminal Case . . . . . . . . . . . . . . . . . . 

VII. The Relationship Between the Crown and Counsel for the Victim .... 

VIII. Future Developments ...................................... 

This chapter was authored by Dawne Way.

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

 Prosecuting and Defending Sexual Oence Cases

I. Introduction

Victims may seek counsel for any number of reasons and at any time, including before

reporting the assault to the police. For example, victims may seek advice on what to

expect if they make a report to the police; they might require independent legal advice

or representation if the defence brings a third-party records application or an applica-

tion to adduce evidence of other sexual activity; they may want counsel to assist with

preparing them for trial; or they might want to speak to a lawyer because they do not

want the prosecution to continue. The public perception seems increasingly to be that

victims require legal advice and representation to preserve their rights,1 and this may

lead to more victims seeking to retain counsel.2

Unlike the roles of defence counsel and the Crown, which have been shaped by

centuries of jurisprudence, the role of counsel for victims is an evolving one, and

never more so than when the courts are grappling with the changes brought about

by Bill C-513 and the scope of victims’ participation in the applications that is now

required as a result. This chapter represents anattempt to provide some practical tips

to lawyers who represent victims or wish todoso.4

Victims of crime have, until relatively recently, been ignored and sometimes deni-

grated by the criminal justice system.5 The emergence of the idea of “victims’ rights”

in the 1980s and 1990s arose alongside the growth in the due process rights of an

accused with the advent of the Canadian Charter of Rights and Freedoms6 in 1982. This

idea has resulted in a range of substantive legislative changes designed to enhance if

1 Janice Johnston, “‘I’m the Victim and I’m in Shackles’: Edmonton Woman Jailed While Tes-

tifying Against Her Attacker” (5 June 2017), online: CBC News <http://www.cbc.ca/news/

canada/edmonton/sex-assault-victim-jailed-judge-edmonton-1.4140533>.

2 It should be noted that the focus of this chapter is on representing the victim in response to

an application brought by the defence. In these situations, the victim will likely have given his

or her statement to the police months earlier and may have already testified at a preliminary

inquiry. Generally, this category of victim will be committed to seeing the charges brought

through to completion. They stand in contrast to the “recanting victim” who may immediately

indicate that he or she does not want the charges to proceed. See Section IV.G, “Recantation

Adavits” for further discussion on this topic.

3 Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make con-

sequential amendments to another Act, 1st Sess, 42nd Parl, December 2018. The Act received

Royal Assent on December 13, 2018.

4 This chapter focuses on representing a victim in the context of criminal proceedings for sexual

assault and related charges, but a non-exhaustive list of other options for victims of sexual assault

or misconduct includes civil actions, human rights tribunals hearings, criminal injuries compensation,

workplace investigations, union/workplace disputes, complaints to the Oce of the Independent

Police Review Director (in Ontario), and prosecutions by professional regulatory bodies such as the

College of Physicians and Surgeons of Ontario and corresponding entities in other provinces.

5 Don Stuart, Canadian Criminal Law: A Treatise, 7th ed (Toronto: Carswell, 2014) at 72.

6 Part I of theConstitution Act, 1982, being Schedule B totheCanada Act 1982 (UK), 1982, c11

[the Charter].

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