Sexual Assault & Consent

Once a person has been arrested and charged with a crime, they become “the accused”. Depending on the circumstances, the police can hold the accused for a bail hearing, may be referred to as a show-cause hearing, or release them with conditions.

If the police have not released the accused, the accused must go before a Justice of the Peace (JP) or a Judge within 24 hours of the arrest for a bail hearing.

At a bail hearing, the JP or Judge will decide if the accused is granted bail or kept in custody. Bail means someone known to the accused provides money or any type of surety as a promise that the accused will show up for their future court dates. The accused may also be required to agree to obey certain rules known as conditions as decided by the JP or Judge.

One of the conditions is usually a “No Contact Order”.

This means that the accused cannot have any contact with you – not even through a third party (another person). The accused, or anyone at the request of the accused, cannot contact you by phone, letter, e-mail, text message, social media or in person. Generally, the accused will not be allowed near your home, school and/or work. If the accused disobeys any of the bail conditions, you should contact the police. An additional charge for breaching the bail conditions can be laid against the accused.

The accused will make many court appearances throughout the judicial process. Some of these court dates will be referred to as “Set Dates.” You are not required to attend these court dates. These dates are routine preparation dates for the lawyers.

You will only have to attend a court date if there is a preliminary hearing or a trial.

Depending on the case, it can take between several months to several years for the court case to be finished. This long wait may be difficult for you. It is important to have support during this time. There are community agencies that can help you through the process.

Your case will be referred to a worker in the Victim/Witness Assistance Program (VWAP), located in the courthouse for the purpose of guiding you through the court process. The role of the worker will be to inform you of the status of the criminal court case and answer your questions about the criminal justice system, courtroom procedures and your role in court. The VWAP workers will:

• Help you understand what to expect at each court date;
• Provide you with copies of court papers, such as bail conditions and probation orders;
• Offer ongoing emotional support throughout the court process;
• Help you complete a Victim Impact Statement; and
• Coordinate with the Crown Attorney’s office to have you meet with the Crown Attorney, should you be required to testify

Upon setting a date for a preliminary hearing or trial, a Crown Attorney will be assigned as soon as possible. It is the responsibility of the Crown Attorney to meet with you and prepare you for the trial process. The preparation is usually done with the investigating officer and representatives from the VWAP.

There are several resources that will help you prepare for court. The investigator will offer these resources to you.

A preliminary hearing is a “mini trial” in front of a Judge. It is not required in every case, but it is very common when sexual assault charges are laid. In a preliminary hearing, the Judge will decide if the Crown Attorney has enough evidence to proceed to trial. You will most likely have to testify in a preliminary hearing. Other witnesses may have to testify as well. The accused and their lawyer will also attend and testify.

A trial is when the Crown Attorney and the accused’s lawyer will ask you and other witness what happened before, during and after the sexual assault. At the end of the trial, the Judge will announce the outcome of the trial, which is called a verdict. Deciding the verdict can take several weeks while the Judge or jury reviews the evidence.

At the beginning of the trial, the accused will plead “guilty” or “not guilty” to the sexual assault charge(s). A plea of “guilty” means the accused admits to the crime. In these cases, there will not be a trial and you will not have to testify. The Judge will listen to the facts of the case, find the accused guilty, and decide the punishment to be imposed. If the accused is found guilty, the Judge will choose from a range of sentences.

A plea of “not guilty” means the accused does not admit to the crime. The accused will then request a trial before a Judge or before a Judge and Jury. In these cases, you will have to attend court to testify at the trial.

It is important to remember that if the Judge or jury decide that the accused is not guilty, this does not mean you or the other witnesses were not believed. If the accused is found not guilty, the accused is free to go. This is called an acquittal.

As a survivor of sexual assault there are non-criminal options available to you. You may be awarded compensation even if no charges were laid or if the accused is found guilty.

If the accused chooses to plead not guilty, you will most likely be required to testify at the preliminary hearing and at the trial. There are several resources that will help you prepare for court. The investigator will offer these resources to you.

Probation:

• Probation is when offenders serve their time in the community. Offenders will be supervised by, and must visit a probation officer. An offender usually has rules to follow that are listed on the Probation Order. These rules, known as conditions, may include: not using alcohol; staying away from certain areas or people; attending counselling; seeking or maintaining employment; obeying a curfew. A Probation Order cannot last more than three years.
• If the offender violates any one of the conditions of probation, he/she may be arrested and charged with a new offence “Breach of Probation”.

Suspended Sentence with Probation:

• A Judge may choose to delay or “suspend” giving a sentence to the offender. This means that the Judge may release the offender on a Probation Order. The offender does not serve any jail time, but is under the supervision of a probation officer.

Intermittent Sentence:

• When a Judge orders a sentence of 90 days or less, the offender may go to jail on weekends only. This allows the offender to go to work or school, or manage any health concerns. This sentence always comes with a Probation Order. When not in jail, the offender must comply with the Probation Order.

Incarceration:

• Incarceration means that the offender is sent to jail. The judge can also order a “No Contact Order” as part of the sentence. This means the offender cannot contact you from jail.
• If the sentence is less than two years, the offender is sent to a “Provincial Jail”. An offender may also be given a Probation Order to adhere to when he/she gets out of jail.
• If the sentence is two years or more, the offender will be sent to “Federal Prison”. There are minimum, medium and maximum-security prisons. The security level is determined by the risk the offender may pose when in prison. It does not mean the sexual assault was more or less serious.

Appeals:

• The accused or the Crown Attorney can ask for a higher court to review an acquittal, conviction, or sentence given by a Judge. This must be done within 30 days of the sentencing.

If the higher court agrees to hear the appeal, the Judge may change the original court’s decision, sentence, or order a whole new trial. You do not have to testify at an appeal court. You will only be called to testify again if a new trial is ordered.

Most offenders can apply for early release from prison after serving one third of their sentence or after seven years, whichever comes first. A Parole Board will decide, based on the offender’s behaviour and completed programming or treatment, whether or not to approve the offender’s request for parole. Offenders who are denied parole can reapply every two years.

Some offenders in the federal prison system are not allowed to apply for parole after serving one third of their sentence. In these cases, the Judge will decide during sentencing the date if the offender is allowed to apply for parole.

If parole is approved for an offender, this does not mean the offender is free without supervision. The offender will be released from prison and will serve the remainder of their sentence in the community under specified conditions and under the supervision of a parole officer.

Most offenders will not serve their full sentence in jail. In most cases, an offender will be released from jail on parole after serving a part of the sentence. You can request to be notified of the offender’s release and parole hearing.

If the offender is serving a sentence in a “Provincial Jail” - you may register with the Victim Notification System by calling 1-888-579-2888 (toll-free). Choose the option for the Victim Notification service.

If the offender is serving a sentence in a “Federal Prison” - you may register with the National Parole Board by calling toll free at: 1-800-518-8817.

To ensure you can be notified of parole hearings, or if the offender is transferred or released, call the Victim Services Unit of Correctional Service Canada toll free at: 1-866-806-2275.

If the court finds the accused guilty, including if the accused pleads guilty, the Crown Attorney will ask you to complete a Victim Impact Statement. This document is your opportunity to say how the sexual assault has affected your life, emotionally and physically. This statement is taken into consideration by the Judge for sentencing. A VWAP worker can help you complete the Victim Impact Statement form.

Completing a Victim Impact Statement is your choice. You are not required to do so in order for the accused to be sentenced. It is also your choice if you want to read your statement to the court. It is very important for the Judge to understand the impact of the sexual assault on you and your life. If you do complete this statement, the Judge is required to consider what you have said when deciding what penalty be imposed.

If you or someone you know is under the age of 18, there are aids that can be utilized to relieve understandable apprehensions and fears of testifying. A VWAP worker can help organize the use of; closed-circuit TV (CCTV) to be utilized from another room, a screen to be placed to block the child’s view of the offender, the use of a support person while testifying or the use of a court approved therapy (if used at that courthouse).

At the first court appearance, the Crown, in most cases, will often apply for an Order banning the publication of any evidence that may tend to identify the victim/survivor, which includes not publishing your name.

Under section 486 of the Criminal Code, a Judge may prohibit the publication of identifying information about a complainant or witnesses in certain proceedings related to sexual offences (among other things).

If you do not want a publication ban then advise the police and VWAP as soon as possible who will communicate your wishes to the Crown.

A 486-publication ban does not apply to you if you are only discussing your particulars (not another victim’s), and in doing so you did not intentionally or recklessly reveal any other person whose identity is protected by a publication ban.

If there is a publication ban on your identity and you do not wish it to remain, you should speak with your VWAP worker and have them set up a meeting with the assigned Crown to discuss this. The Crown will make sure you are making an informed decision and, absent your request identifying another victim who does want the publication ban removed, will ask the court to remove the ban on your identity. Once this application is made by the Crown, the Court must remove the pub ban unless to do so would identify another victim who wishes their publication ban to remain in place. This only applies to a very small percentage of cases so please speak to your VWAP worker about this should you wish your publication ban removed.