In Québec, the decision to institute judicial proceedings is taken not by the police, but by the criminal and penal prosecuting attorney (commonly known as the “Crown prosecutor”). The prosecutor makes this decision after examining the evidence gathered by the police and determining whether there is sufficient evidence to bring the case to court. The Crown prosecutor is responsible for the prosecution and represents the State; he or she does not act as counsel for the victim. In fact, the victim is usually considered to be the prosecution’s chief witness.
- In Canada, sexual assault is a criminal offence and it is treated as such when reported to the police. Judicial proceedings in the case of sexual assault are the same as those for any other crime against the person and they are conducted either at the Criminal and Penal Division of the Court of Québec or at the Youth Division.
- The handling of complaints in the criminal justice system involves several steps that begin as soon as a complaint is filed.
- The Youth Criminal Justice Act (YCJA) provides for specific judicial measures for young people 12 to 17 years of age accused of a sexual offence.
- The judicial process continues for the duration of sentences (corrections phase) and, where applicable, during an offender’s conditional discharge.
For more information on the criminal justice process, see the following websites and documents:
Judicial proceedings for sexual offences
Handling of complaints under the judicial process
Verdict of not criminally responsible on account of a mental disorder
Presenting a defence of mental disorder to a jury (or a judge) can lead to a verdict of not criminally responsible on account of a mental disorder. In such cases, the person is referred to a review board known as the Commission d'examen des troubles mentaux.
The appeal process
- An appeal is the recourse used to have a verdict, judgment, order or sentence reviewed when one of the two parties in a case considers that the judge has made an error in law or in fact.
- An appeal is not an opportunity to recommence a trial; the accused and the witnesses are not heard. An appeal may be allowed or dismissed, lead to the ordering of a new trial or cause a sentencing condition to be changed.
- It is impossible to file an appeal in the case of a trial by jury unless it can be shown that the judge influenced the jury by giving them erroneous or inaccurate legal instructions.
- Appeals are heard by the Superior Court (in the case of summary convictions) or by the Québec Court of Appeal. This latter court is presided over by three or five judges who, after hearing both parties to a case, decide whether or not the trial judge committed an error. In certain exceptional circumstances, an appeal may be filed directly with the Supreme Court of Canada.
- If one of the parties does not agree with the decision of the Court of Appeal, the party may take the case to the Supreme Court of Canada (for an appeal on a question of law or an appeal on leave). The Supreme Court’s decision is final.
Burden of proof
- In a criminal prosecution, the burden of proof rests with the criminal and penal prosecutor. The accused does not have to demonstrate that he or she is innocent.1 Therefore, a verdict of not guilty does not necessarily mean that a crime has not been committed or that a victim has made false allegations of sexual assault. Such a verdict can result from a reasonable doubt as to the guilt of the accused, even if the victim has been deemed to be credible
Protection of the privacy of victims and witnesses in sexual offence cases
- Judicial proceedings are usually open to the general public. However, in certain circumstances specified in the Canadian Criminal Code, a judge can order that the public be excluded or that the evidence gathered not be published or transmitted in any way, in order to protect the privacy of victims, particularly victims of sexual offences.
- In addition, a publication ban may be imposed to prohibit the public and the media from revealing the identity of victims and witnesses, in order to protect their privacy.
- Several provisions of the Canadian Criminal Code2 are designed to protect the privacy of victims and witnesses in sexual offence proceedings:
- Section 486.4: limits the publication of information that could identify a complainant or a witness in sexual offence cases, in order to ensure the proper administration of justice;
- Section 276.3: prohibits the publication of evidence pertaining to the complainant’s sexual activity;
- Sections 278.1 to 278.91: set out the rules for access to the personal records of a complainant or a witness, as well as the procedures for applying for access to these records. Anyone who fails to comply with the prohibition pertaining to the transmission of records or with the conditions under which they may be transmitted, as provided for by the court, commits an offence;
- Under common law, a judge has the discretionary power to issue a publication ban regarding any other fact revealed by the evidence (e.g. parent-child relationship).
Protection of minors in judicial proceedings for sexual offences
- The Canadian Criminal Code, the Youth Criminal Justice Act (YCJA) and the Youth Protection Act provide for the need to protect the identity of sexual assault victims and witnesses, and of young offenders under 18 years of age.3
- A publication ban must be ordered in proceedings pertaining to offences involving young offenders under the age of 18, including sexual offences.3 However, the court may issue an order lifting a ban on the publication of information that would identify a young person if he or she has been found guilty of a violent offence (YCJA, s. 75). In addition, publication bans are automatically lifted when a young person receives an adult sentence.
- A judge may also order that all or certain members of the public be excluded from court proceedings in order to protect victims and witnesses who are vulnerable on account of their age, relationship with the accused, the nature of the offence or other factors.
INFOVAC-plus program for victims
- Under the INFOVAC-plus program,4 sexual assault victims are provided with information on the judicial process, their rights and available recourse, and support services when they file a complaint. Victims are kept informed about the conduct of their case at different stages in the judicial process.
- A victim impact statement form enables victims to tell the court how a sexual assault has affected their life. Victims can also present their statement in person to the court.
- At the end of judicial proceedings, victims receive a letter informing them of the outcome, the decision handed down, and the sentence, where applicable.
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 person to a child protection agency for a needs assessment and services. At the same time, the Director of Youth Protection may offer the young person protection, psychosocial support and other services.
- The Youth Criminal Justice Act (YCJA)5 applies to young people 12 to 17 years of age accused of having committed a criminal offence, including a sexual offence.
- When a minor is accused of an offence, the provisions of the YCJA come into play during the judicial process and slightly change the steps involved.
- Young people charged of an offence appear before a judge of the Youth Division of the Court of Québec.
- For certain less serious sexual offences, the YCJA stipulates that the criminal and penal prosecutor can apply extrajudicial sanctions (alternative measures) instead of instituting judicial proceedings. Generally speaking, however, extrajudicial measures cannot be applied in the case of sexual assault.
- Young offenders convicted of a sexual offence who have been given an adult sentence must register with the National Sex Offender Registry.
- The purpose of Canada’s correctional system is to protect the safety of the public, carry out sentences, rehabilitate offenders and reintegrate them into the community.6
- The correctional process begins as soon as a judge imposes a sentence on an offender.
- Canada’s correctional process comprises four main stages:6
- Assessment of the offender
- Preparation of a correctional plan
- Detention or sentence in the community
- Release or end of the correctional process
Victims and the correctional system
Victims do not automatically receive information about an offender who harmed them. However, while an offender is incarcerated, a victim can receive information on the offender’s eligibility and release dates and on decisions made by the Parole Board of Canada (PBC) if the victim so requests. A victim can also ask to attend PBC hearings if the offender is serving a sentence of two years or more. If the offender is serving a sentence of six months or less, the victim is provided with information via Québec’s correctional system. A victim can also make representations on the impact of a crime and on his or her concerns about the offender’s eventual release (e.g. concerns about his or her safety and the possibility that the offender will reoffend or take reprisals).4
- Canadian Charter of Rights and Freedoms. Appendix B, Part I of The Constitution Act, 1982.
- Criminal Code, R.S.C. (1985), c. C-46.
- From “A Crime Victim’s Guide to the Criminal Justice System” on the Department of Justice Canada website: http://www.publications.gc.ca/site/eng/9.688616/publication.html
- Table de concertation sur les agressions à caractère sexuel de Montréal (2008). Information Guide for Sexual Assault Victims.
- Loi sur le système de justice pénale pour les adolescents - application au Québec: www.justice.gouv.qc.ca. (Available in French only)
- From the “Correctional Process: From A-to-Z. Quick Facts” section of the Correctional Service of Canada website: www.csc-scc.gc.ca/publications/005007-3000-eng.shtml