Trial Considerations

• Author: Lisa Joyal/Jennifer Gibson/Lisa Henderson/David Berg/Kasandra Cronin
• Pages: 529-611

529

Trial

Considerations

12

I. Overview ................................................ 530

II. The Bail Process .......................................... 532

III. Indictments and Informations ............................... 540

IV. The Disclosure and Use of Sensitive Material in

Child Abuse Cases ........................................ 552

V. Section 276 Applications—Evidence of “Other” Sexual Conduct ... 559

VI. Third-Party Records Applications ............................ 572

VII. Expert Evidence .......................................... 585

© [2023] Emond Montgomery Publications. All Rights Reserved.

530Prosecuting and Defending Oences Against Children

I. Overview

There are many rules that govern how Crown and defence counsel ought to conduct

themselves with each other and with the court in the prosecution and defence of

accused persons in criminal litigation. For instance, the Canadian Charter of Rights

and Freedoms (the Charter), the Criminal Code,professional codes of ethics, and case

law all provide direction to Crown and defence counsel on trial practice matters.

Many prosecution services in Canada have also published policies, guidelines, and

prosecution manuals on the Internet that explain the duties of Crown counsel to the

public, the court, the criminal justice system, accused persons, and victims.1 Needless

to say, all of these rules apply with equal force to child abuse litigation.

The provinces of Ontario and British Columbia have even taken things one step

further by publishing specific guidance for Crown counsel with respect to crimes

against children. Ontario’s Crown ProsecutionManual includes directives concern-

ing offences against children and Internet child exploitation.2 In addition, the British

Columbia Prosecution Service’s Crown Counsel Policy Manual contains a policy that

covers many general guidelines pertaining to the prosecution of offences against chil-

dren, including the following:

• For all cases involving child victims or witnesses, the procedures in Crown

offices should provide for:

– early identification and assignment of the case;

1 See, for instance, the Public Prosecution Service of Canada Deskbook, online: <http://www.

ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/index.html>; Ontario, Ministry of the Attorney

General, Crown Prosecution Manual, online: <https://www.ontario.ca/document/crown-

prosecution-manual>; Alberta Crown Prosecution Service, Attorney General Guidelines

for the Crown Prosecution Service, online: <https://open.alberta.ca/publications/attorney-

general-guidelines-for-the-crown-prosecution-service>; British Columbia Prosecution Ser-

vice, Crown Counsel Policy Manual, online: <https://www2.gov.bc.ca/gov/content/ justice/

criminal-justice/bc- prosecution-service/crown-counsel-policy-manual>; Manitoba Pros-

ecution Service, Prosecution Policies, online: <https://www.gov.mb.ca/justice/crown/

prosecutions/policy.html>; Government of New Brunswick, Office of the Attorney General,

Public Prosecution Operational Manual, online: <https://www2.gnb.ca/content/gnb/en/

departments/public-safety/attorney-general/content/operational_manual.html>; Govern-

ment of Newfoundland and Labrador, Guide Book of Policies and Procedures for the Conduct

of Criminal Prosecutions in Newfoundland and Labrador, online (pdf): <https://www.gov.

nl.ca/jps/files/prosecutions-pp-guide-book.pdf>; Nova Scotia, Crown Attorney Manual:

Prosecution and Administrative Policies for the PPS, online: <https://novascotia.ca/pps/

crown_manual.asp>; Prince Edward Island, Guide Book of Policies and Procedures for the Con-

duct of Criminal Prosecutions, online: <https://www. princeedwardisland.ca/en/publication/

guide-book-policies-and-procedures-conduct-criminal-prosecutions>.

2 Ontario’s Crown Prosecution Manual, ibid,contains a series of directives, some of which have

direct application in the context of child abuse cases. See directive 27, Offences Against Chil-

dren; directive 22, Internet Child Exploitation; directive 35, Victims; directive 34, Testimonial

Aids and Accessibility.

© [2023] Emond Montgomery Publications. All Rights Reserved.

Chapter 12 Trial Considerations 531

– early identification and notice to the child of accommodations available

under sections 486 to 486.31 and 486.7 of the Criminal Code;

– assignment of the case to a Crown counsel who has received specialized

training, wherever feasible;

– every reasonable effort being made to have these cases handled by the same

Crown counsel from the beginning to the end of the case;

– priority in scheduling to ensure that the case moves expeditiously through

the criminal justice system.

• The decision to commence or continue a prosecution that involves an offence

against a child may take the wishes of the child victim or their parents or guard-

ians into account but should not be made solely on this basis.

• Charge assessment decisions should be made in a timely manner as child com-

plainants or witnesses may be particularly distressed by delays, weakening their

resolve or ability to effectively participate in the criminal justice process.

• Where there is a significant danger of psychological or physical harm to a child

complainant or witness and it is reasonable to believe that their required par-

ticipation in multiple judicial proceedings could have adverse affects, Crown

counsel should consider seeking consent to proceed by direct indictment.

• Crown counsel should consider applying for publication bans at the first

instance.

• As early as reasonably possible in the prosecution, Crown counsel should iden-

tify any witness who may require testimonial accommodation.

• When Crown counsel decides not to approve a charge, or decides to direct a

stay of proceedings, or where the accused is acquitted, Crown counsel should

consider whether to make an application for a recognizance under the Criminal

Code to ensure the safety of the child or others. The recognizance can include

supervision and counselling conditions.3

There are also many specific rules of law that apply directly to child complainants

and child abuse prosecutions. While the preceding chapters of this text have typi-

cally included the substantive rules of criminal law, evidence, practice, and procedure

that have special application to child abuse cases and those accused of child abuse

offences, there are still a few trial matters that merit further discussion where an

alleged offence has been committed against a child:

1. the bail process,

2. indictments and informations,

3. the disclosure and use of “sensitive material” in child abuse cases,

3 British Columbia Prosecution Service, Crown Counsel Policy Manual, supra note 1.

© [2023] Emond Montgomery Publications. All Rights Reserved.