Frequently Asked Questions
Are There Limitations to an Accused’s Ability to Challenge the Complainant During a Sexual Assault Trial?
There are some limitations to what the defence can cross-examine the victim of a sexual assault on at trial. First, a cross-examination should be limited to what the victim has provided as testimony, the original statement they gave to the police, or any other evidence that they can speak to. The role of cross-examination is to determine the credibility or truthfulness of a victim, and the reliability of their memory. By questioning the victim, the defence can expose any major discrepancies in their account of the offence as given to the police and the testimony they gave in court. Furthermore, if an offence involved an intoxicated victim, or there is other reason to believe their memory might be faulty, a cross-examination might lead a judge to question the reliability of the testimony, which may in turn lead to a finding that the accused is not guilty of the offence.
The second limitation on challenging the victim concern’s their sexual history. Under s. 276 of the Criminal Code, the sexual history of the victim cannot be used at trial to suggest that they consented to the conduct at issue. Courts no longer place any stock in the idea that past consent implies consent in the present. Instead, it is understood that consent is an event-specific concept that can be revoked at any time. Therefore, using the victim’s sexual history to undermine their credibility as a witness is not allowed.
Should the Accused Speak to the Police About the Sexual Assault in Orangeville?
A person arrested for sexual assault in Orangeville should not speak to the police regarding the assault beyond confirming their identity. Our lawyers would advise any accused person to exercise their right to remain silent. There is often limited evidence available in sexual assault cases. Cases will regularly proceed on the victim’s police statement and the testimony they give at trial. As noted above, that testimony is subject to cross-examination, which will attempt to expose any weaknesses in the Crown’s case.
If an accused gives a statement to the police, that becomes admissible evidence at trial. It is also subject to cross-examination and the same scrutiny as above. The judge will then have to determine which version of events is more credible. Therefore, the less the accused says to the police upon arrest or during interrogation, the better because then there is less information that could potentially be used against them.
Will the Complainant Receive Money from the Offender?
The victim may receive a small amount of money from the offender if the judge ordered a victim surcharge to be paid. The amount of that surcharge is equal to 30% of any fine the offender receives as part of their sentence, or is a flat amount based on the type of sexual assault offence. Lesser sexual assaults prosecuted as summary offences carry a surcharge of $100. An example of this can be seen in the case of R. v. Hillier, where the offender’s assault consisted of touching the victim’s buttocks and making a joke of it while she was bent over. More serious assaults prosecuted as indictable offences result in a $200 surcharge.
A victim will not receive larger amounts of money from the criminal process. As sexual assault is not a crime against property, a court will not issue a restitution order. If the victim would like additional compensation for damages, they can sue the offender in civil court for the tort of battery. If the offender has been criminally convicted, their civil liability will be guaranteed.
Can the Accused Provide Evidence to the Crown in Orangeville?
Yes, it is possible for the accused to provide evidence to the Crown. It can either be introduced by the defence during a trial or given earlier in the process. It is possible for an accused to engage in an informal negotiation known as a Crown Pre-Trial. In this proceeding, that is usually a phone call, the accused either representing themselves, or with the aid of a lawyer such as our counsel in Orangeville, discuss the case against them. At that point, the accused can provide the Crown with the evidence in their possession. The Crown will then add the evidence to the existing file on the matter and assess it. Depending on the strength of the case against the accused, the evidence they provide may convince the Crown to formally withdraw the sexual assault charge.
Is DNA Evidence Necessary to Receive a Sexual Assault Conviction?
DNA evidence is usually not needed for the Crown to secure a conviction for sexual assault. It is not usually included in the evidence package as many victims do not use rape kits or other testing processes to retrieve it. DNA evidence is useful in determining the identity of the offender, but studies have shown that most sexual assaults are committed by someone known to the victim. And as mentioned above, the identity of the accused and the fact that the sexual activity occurred are often admitted as fact during a trial. This means that DNA evidence is often irrelevant. Instead, the issue of consent to the sexual activity is central to many cases.