Frequently Asked Questions
Can a Victim’s Sexual History be Used as Evidence in Sexual Assault Cases in Mississauga?
Typically, a victim’s sexual history is not admissible evidence that can be raised as an issue in sexual assault cases. There are some exceptions to that rule, but there has been a recent shift in thinking that now protects people from being judged on their past behaviour simply because they have become the victims of a serious criminal offence. This development comes from a better understanding of the myths surrounding sexual assault.
One such myth is that once a person has consented to one form of sexual activity, they will be considered to have consented to it forever. That is not true. Consent is always revocable and depends on the circumstances of the event. Other myths suggest that people with more varied sexual histories are more likely to consent to sexual activity by default, and that their histories undermine the credibility of the testimony they provide as a witness. Dispelling these myths is an important step in attributing responsibility to offenders and helps the law evolve beyond outdated ideas like that which claimed married partners could not rape each other. This specific example was the law until 1983.
What is the Exception to that Rule?
There are exceptions where a victim’s sexual history is admissible, and they are used when that history becomes a genuine issue at trial. The exceptions are governed by two provisions of the Criminal Code, ss. 276 and 278.2. Section 276 sets out that the exceptions are only used where the history is not used to undermine the testimony of the victim, is relevant to the trial, demonstrates specific sexual activity of the same kind as that at issue and where its value is worth more than potential damage to the victim. The rationale behind this exception includes that it will encourage the reporting of sexual assault offences, will allow offenders to fully defend themselves with all relevant information, and allow for the correct decision to be at trial.
Section 278.2 allows a record to be produced for the accused that contains relevant information under certain conditions. The applications must be made by defence counsel in writing and set out the specific evidence that production is being sought for and who has that evidence in their possession. The evidence that may be produced because of this written application depends on the facts of the case, but might include a record of communication (texts, DMs or other messages), or relevant medical records.
What Kinds of Evidence is Typically Used in Sexual Assault Cases?
Many sexual assault cases rely on the testimony of the parties involved, the victim and the accused. This can lead to difficulty and produce he-said-she-said situations where judges must compare the persuasiveness of the testimony they hear. That is why other types of evidence are valuable.
Other common types of evidence in sexual assault cases include victim or witness statements collected by the police. Witness statements may come from people who saw either party after the alleged offence occurred, or from the police responding to the issue themselves. Furthermore, it is possible for the defence to call anyone they wish as a witness, but their testimony will be carefully examined. Aside from testimony, records of communication may be relevant evidence, as will any videos made of the event. And if expert testimony is needed on some issue, such as a medical point, that may be allowed as well.
What is the Role of the Victim in Sexual Assault Cases in Oakville?
Victims of sexual assault, in Mississauga or elsewhere, receive more consideration than victims of most other criminal offences in Canada because of the seriousness of the crime and the personal impact it can have on someone’s life. However, once a charge is laid and the matter is turned over to the Crown, victims lose most of their ability to influence proceedings.
It is standard for the Crown to run a sentencing position past a victim once an offender has either pled guilty to the offence or been convicted after a trial. If the victim feels that the sentence is deeply flawed and imposes insufficient punishment, the Crown may revise their submission. This is not a guarantee. Beyond this, the victim can also play a role in the sentencing process by providing a Victim Impact Statement to the court that describes how the offence has impacted their life. Victims are granted the right to do this under the Victim’s Bill of Rights. The judge would then take the statement into consideration before coming to a final decision on the appropriate sentence.
What is the Difference Between Joint Position and Open Sentencing?
Joint position and open sentencing describe the two types of sentencing procedures found in Canadian law. Joint positions occur when the Crown and the defence have similar ideas on what an appropriate sentence would be based on the facts and evidence surrounding a specific case of sexual assault. Usually when there is a joint submission, a judge will use it as a strong guide for their final sentence. However, joint submissions can be ignored if the judge is of the opinion that the position is so unhinged from reality that a reasonable person would believe the sentence would bring the administration of justice into disrepute. Put simply, a judge will disregard any joint position that would conceivably undermine the public confidence in the criminal justice system.
Open submissions occur where the Crown and defence have different ideas on sentencing. At that point, they make submissions to the judge that rely on any aggravating or mitigating factors present in the case that suggest a punishment should be more, or less, strict respectively depending on the balance of those factors. After hearing open submissions and asking any necessary questions, a judge’s decision will usually fall somewhere in the middle of the two positions.