Criminal Justice Process in case of sexual assault
Update of Law section: May 12, 2022
The information presented in this section is provided for informational purposes only. It does not constitute legal advice.
In Québec, the decision to prosecute is not made by the police authorities, but by the criminal and penal prosecuting attorney (commonly known as the “Crown prosecutor”). The prosecutor decides whether to bring a case to court, as the representative of the Direction des poursuites criminelles et pénales, after examining the evidence gathered by the police authorities. The prosecutor is responsible for prosecuting the person accused of committing an offence. The prosecutor represents the State and does not act as counsel for the victim. In fact, the victim usually acts as a witness during the penal proceedings.
In Canada, sexual assault is a criminal offence under the Criminal Code, and the judicial proceedings for it are the same as those for any other crime against the person. However, specific rules apply with regard to evidence management in sexual offence cases, which include sexual assault and other sexual offences.
As soon as a sexual assault complaint is filed with the police authorities, a series of steps are taken in the criminal justice system, starting with a police investigation and ending, in some cases, with the imposition of a sentence under the Criminal Code. The judicial proceedings are conducted at the Criminal and Penal Division of the Court of Québec, the Youth Division of the Court of Québec or the Superior Court.
Unlike adults, young people 12 to 17 years of age accused of a sexual offence go through a judicial process that is subject to the Youth Criminal Justice Act (YCJA). This Act provides accountability for young offenders through extrajudicial or judicial measures or sanctions.
The judicial process continues for the duration of sentences and, if applicable, during an offender’s conditional release. The correctional process in Canada is overseen by the Correctional Service of Canada, which is responsible for implementing the Corrections and Conditional Release Act (CCRA).
A new Act came into force in Québec in November 2021 to support victims of sexual offences through the various stages of the criminal justice process. The Act to create a court specialized in sexual violence and domestic violence provides for the creation of a specialized division in the Court of Quebec to hear cases of sexual and domestic violence. It provides for special support for victims of such violence to improve their experience of the criminal justice process.
Burden of proof
In a criminal prosecution, the burden of proof lies with the criminal and penal prosecutor, who must prove “beyond a reasonable doubt” that the accused committed a crime. In accordance with the presumption of innocence, the accused is presumed innocent as long as they have not been found guilty by a judge or jury or have not pleaded guilty1. In other words, the accused does not have to demonstrate that they are innocent. Therefore, a not guilty verdict does not necessarily mean that no crime was committed or that a victim has made false allegations of sexual assault. Such a verdict can result from a reasonable doubt about the guilt of the accused, even if the victim was found to be credible. In fact, a judge or jury may even believe that it is very likely that a sexual assault occurred, but will have to acquit the accused if a reasonable doubt remains.
For more information about the criminal justice process:
- Processus judiciaire au criminel section, Ministère de la Justice du Québec website (in French only).
- Criminal Justicesection, Department of Justice of Canada.
- The Québec Judicial Systemsection, Éducaloi website.
- Processus judiciaire section, Table de concertation sur les agressions à caractère sexuel de Montréal website (in French only).
- Information Guide for Sexual Assault Victims - 3rd edition, Secrétariat à la condition féminine website.
Judicial proceedings for sexual offences
In sexual offence cases, including sexual assault, it is not necessary to prove that the accused knew that the victim had said “no” to the activity, but simply that they knew the victim had not said “yes”. The passivity of the victim is not an admissible defence. Consent must be freely given, without being coerced in any way2.
Specific rules apply to evidence in the case of sexual offences, such as sexual assault. The Criminal Code stipulates that any evidence of sexual activity intended to demonstrate that the victim was more likely to have consented to the sexual activity or is less trustworthy is inadmissible (s. 276). In addition, under section 277, evidence of sexual reputation that is intended to attack or defend the credibility of the victim is inadmissible3. For example, the number of sexual partners a victim has had or the victim’s prior consensual sexual relations with the accused are not admissible evidence, except if the evidence is relevant to an issue in the case, is of specific instances of sexual activity or has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
In determining whether evidence is admissible, the judge considers a number of factors, such as the interests of justice, society’s interest in encouraging the reporting of sexual assault offences, the need to exclude from the fact-finding process any discriminatory beliefs or biases, and the risk of violating the victim's dignity and right to privacy.
In addition, in the Criminal Code, there is no maximum time limit for reporting a sexual assault. In fact, under section 275 of the Criminal Code, which abrogates the spontaneous complaint rules, an error in law occurs when the veracity of a report is questioned solely because it was not made immediately after the sexual assault2.
Protection of victims’ and witnesses’ privacy in sexual offence cases
Although judicial proceedings are usually open to the general public, a judge may order, in certain circumstances specified in the Criminal Code, that the public be excluded or that the evidence gathered not be published or transmitted in order to protect victims, particularly victims of sexual offences.
In addition, a publication ban may be imposed to prevent the public and the media from revealing the identity of victims and witnesses, in order to protect them.
Several provisions of the Criminal Code are designed to protect victims and witnesses in sexual offence proceedings(3). These provisions make it possible, for example:
- to exclude all or any members of the public from the court room for all or part of the proceedings, or to authorize a witness to testify behind a screen or other device that would allow them not to be seen by members of the public (s. 486) ;
- to authorize witnesses under 18 years of age with a mental or physical disability to testify outside the court room or behind a screen or other device (s. 486.2);
- to prohibit the publication, broadcast or transmission of any information that could identify a victim or witness of a sexual offence (s. 486.4);
- to set out the rules for access to the personal records of a victim or a witness, as well as the procedures for applying for access to those records (ss. 278.1 to 278.91).
Protection of minors in judicial proceedings for sexual offences
The Criminal Code3, the Youth Criminal Justice Act4 (YCJA) and the Youth Protection Act(5) (YPA) provide for the need to protect the identity of sexual assault victims and witnesses, and of young offenders under 18 years of age
The YCJA prohibits, in particular, the publication of the name of a young offender or any information that would reveal their identify. This publication ban does not apply when a young offender receives an adult sentence.
In addition, a judge may order that all or certain members of the public be excluded from court proceedings in order to protect victims or witnesses who are vulnerable on account of their age, their relationship with the accused, the nature of the offence or other factors.
Steps in the criminal justice process
The following chart illustrates the main steps in the criminal justice process that may occur after a sexual assault is reported to the police.
Verdict of not criminally responsible on account of a mental disorder
Presenting a defence of mental disorder to a judge or a jury can lead to a verdict of not criminally responsible on account of a mental disorder if the judge or jury concludes that the accused was suffering from a mental disorder at the time when they committed the alleged offence. The court or a review board may make one of three decisions: an absolute discharge, a conditional discharge or confinement to a hospital3.
For more information about the criminal justice process:
- Aperçu du processus judiciaire au criminel section, Gouvernement du Québec website (in French only).
- Accompanying Sexual Assault Victims in Vulnerable Situations guide, Éducaloi website.
- Information Guide for Sexual Assault Victims - 3rd edition, Secrétariat à la condition féminine website.
Appeal process in the Canadian judicial system
Another possible step in the criminal justice process is to file an appeal. An appeal is the process used to review a verdict, judgment, order or sentence when one of the two parties in a case considers that the judge or jury has made an error. The person who files an appeal must prove that the judge or jury made an error that affected the result.
A decision of the Court of Appeal can be appealed to the Supreme Court of Canada, which is the final court of appeal. The Supreme Court’s decision is final.
An appeal may be allowed or dismissed. If the Court of Appeal considers that an error has been made, it can quash or amend the decision or order a new trial or hearing, where applicable. If the appeal is dismissed , the original decision stands. Appeals are heard by the Québec Court of Appeal, where a panel of three or more judges determines, after hearing the parties, whether or not the trial judge or jury committed an error6.
Sociolegal intervention under the Youth Criminal Justice Act (YCJA)
As soon as judicial proceedings are instituted, the court may, at any time, refer the young offender to child protection agencies, services or social programs. The Direction de la protection de la jeunesse (DPJ) exercises a role of authority in the delivery of delinquency services and can offer simultaneously protection, rehabilitation, psychosocial support and other services(7). For young people who are victims of sexual assault, the DPJ draws up an intervention plan to offer them adapted services and support. To learn more, see Legal Framework - Youth Protection Act (YPA).
The Youth Criminal Justice Act (YCJA) applies to young people aged 12 to 17 accused of committing an offence under the Criminal Code, including sexual assault offences and other sexual offences4. The YCJA contains provisions concerning the judicial process for young offenders, which differs from the criminal justice process for adults.
Four types of responsibility and accountability mechanisms are provided for in the YCJA4:
- The use of extrajudicial measures applied by police services (for less serious offences, not applicable to sexual offences);
- The use of extrajudicial sanctions, under the responsibility of provincial authorities (in Québec, the Direction de la protection de la jeunesse);
- The imposition of youth sentences under the authority of the youth justice court (Youth Division);
- The imposition of adult sentences for young people aged 14 and over (in exceptional situations involving violent offences, such as aggravated sexual assault).
Young people charged of an offence appear before a judge of the Youth Division of the Court of Québec. Young people convicted of a sexual offence who have been given an adult sentence must register with th National Sex Offender Registry.
Sociolegal intervention under the YCJA in Québec8,9
The correctional process in Canada
The Correctional Service of Canada (CSS) is responsible for applying the Corrections and Conditional Release Act (CCRA) and overseeing the correctional process for people convicted of a crime under the Criminal Code. The Service’s goals are the protection of public safety, the enforcement of sentences, and the rehabilitation and reintegration of offenders into the community10.
The Canadian correctional process consists of four main stages10 :
- A comprehensive assessment of the offender, which collects information about the offender and the offence;
- The development of a correctional plan, outlining the recommended treatment and interventions for the offender’s rehabilitation and reintegration;
- Detention or sentence in the community;
- A release plan and release or completion of the correctional process.
Victims and correctional services
A victim can obtain information about the eligibility and release dates of the person who harmed them, if that person is incarcerated. Québec’s correctional services must provide the information to the victim for sentences of less than six months. For sentences of more than six months, but less than two years, the information is provided by the Commission québécoise des libérations conditionnelles (CQLC). For sentences of two years or more, the victim must register with a victim services office of the Correctional Service of Canada (CSC) in order to obtain information on the offender, namely, the dates, locations and conditions of the offender’s release, as well as information about the offender’s progress on their correctional plan10,12.
Act to create a court specialized in sexual violence and domestic violence
The Act to create a court specialized in sexual violence and domestic violence is intended to rebuild trust in the justice system for people who are victims of sexual or domestic violence and, for that purpose, to see that measures are taken to allow people who wish to initiate and pursue a judicial process to do so.
Although the criminal justice process involves a series of stages and mechanisms for people accused of sexual offences, victims are also concerned by this process, which can be a major challenge for many people and create its share of difficulties.
The Act to create a court specialized in sexual violence and domestic violence came into effect on November 30, 2021 in order to make it easier for people who are victims of sexual offencesto navigate the justice system. This Act provides for the creation of a specialized division in the Court of Québec for cases involving sexual or domestic violence, as well as special support for people who are victims of this type of offence. It does not amend the Criminal Code or affect the rights guaranteed by the Canadian Charter of Rights and Freedoms for people accused of offences. It concerns only the processing of criminal cases heard by the Court of Québec.
The Act stipulates that the specialized court will be the focus of pilot projects lasting up to three years before it is implemented throughout Québec within five years of the Act’s adoption, on November 30, 2026.
The objectives of the Act are as follows:
- Rebuild trust in the justice system for victims of sexual or domestic violence;
- Offer integrated psychosocial and judicial services adapted to the needs of victims;
- Lay out courthouses in a safe and reassuring manner;
- Make a sustained effort to reduce delays in the processing of files;
- Ensure a special procedure for proceedings involving sexual or domestic violence;
- Offer justice practitioners continuing education to reduce the risks of secondary victimization;
- Consider the cultural and historical realities of First Nations and Inuit persons.
Specialized court pilot project
The Act provides for the implementation of a pilot project in at least five judicial districts to establish a specialized court that reserves a special procedure for proceedings involving sexual or domestic violence as soon as a victim contacts a police department. Each pilot project must be evaluated on an ongoing basis.The pilot projects end on November 30, 2024. The specialized court must then be set up in the province as a whole by November 30, 2026.
The Act amends the Courts of Justice Act in order to:
- Create a specialized division in the Court of Québec for cases involving sexual or domestic violence;
- Consider the special needs of victims in all stages of the criminal justice process, through:
- Integrated services adapted to their needs;
- Courthouses laid out in a safe and reassuring manner;
- Coordination of files.
- Favour the handling of cases by the same prosecutor, from the start to the end of proceedings;
- Ensure that justice practitioners receive basic, ongoing and specialized training.
To consult the Act to create a court specialized in sexual violence and domestic violence: http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=5&file=2021C32A.PDF
- Canadian Charter of Rights and Freedoms, Constitution Act, ch. 11 (1982) (Retrieved on December 3, 2021).
- Lessard, M. (2019). « Why couldn’t you just keep your knees together? L’obligation déontologique des juges face aux victimes de violences sexuelles », McGill Law Journal, vol. 63, n° 1, p. 33.
- Criminal Code, R.S.C., ch. C-46 (1985) (Retrieved on March 1, 2022).
- Youth Criminal Justice Act, S.C., ch. 1(2002) (Retrieved on March 1, 2022).
- Youth Protection Act, RLRQ, ch. P-34.1 (1977) (Retrieved on March 1, 2022).
- Department of Justice Canada (2016). « The Appeal Process in Canada », in Department of Justice Canada, [online] (Retrieved on March 1, 2022).
- CISSS de Chaudière-Appalaches, et Gouvernement du Québec (2016). Offre de service de la Direction de la protection de la jeunesse, [online], Québec (Retrieved on December 3, 2021).
- Ministère de la Santé et des Services sociaux du Québec (2016). Youth Criminal Justice Act – Young offenders and the criminal justice system, [online], Québec, Gouvernement du Québec (Retrieved on March 1, 2022).
- Ministère de la Santé et des Services sociaux du Québec (2016). Fiche 1.2 - L’application de la Loi sur le système de justice pénale pour les adolescents au Québec, [online] (Retrieved on December 3, 2021).
- Correctional Service Canada (2019). Quick facts : The correctional process, [online] (Retrieved on March 1, 2022).
- Table de concertation sur les agressions à caractère sexuel de Montréal (2018). Information guide for sexual assault victims - 3rd edition, [online], Québec, Secrétariat à la Condition féminine (Retrieved on December 3, 2021).
- Correctional Service Canada (2019). « Victim Services », in Correctional Service Canada, [online] (Retrieved on March 1, 2022).
Author: Maude Lachapelle, Scientific Advisor, INSPQ
In collaboration with: Dominique Gagné, Scientific Advisor, INSPQ and Michaël Lessard, Lawyer and PhD student, University of Toronto