Representing the Victim in a Sexual Offence Proceeding

• Author: Brian H. Greenspan/Vincenzo Rondinelli/Daniel Brown/Jill Witkin
• Pages: 575-595

575

Representing

the Victim in a

Sexual Ofence

Proceeding

17

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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Appendix . Representing Victims in Sexual Assault Cases:

Checklist ................................................ 

© 2024 Emond Montgomery Publications. All Rights Reserved.

576 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, a private

records application, or an application 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 percep-

tion 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

Testifying Against Her Attacker,” CBC News (5 June 2017), online: <https://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 their

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 they do not want the charges to proceed. See Section IV.G, “Recantation Adavits” for

further discussion on this topic.

3 An Act to amend the Criminal Code and the Department of Justice Act and to make consequential

amendments to another Act, 1st Sess, 42nd Parl (assented to 13 December 2018), SC 2018, c 29.

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 reg-

ulatory 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].

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