Frequently Asked Questions
Will the Victim Have a Lawyer in Sexual Assault Cases in Windsor?
Typically, the victim of a sexual assault will not have their own lawyer during criminal proceedings. It is the role of the Crown to prosecute the accused and the victim would have no need for a lawyer to assist in that purpose. The only direct impact a victim may have happens if they provided testimony. That said, a victim can have a lawyer appointed for them by the court in cases where the accused makes a request for the victim’s personal records under ss. 276 or 278 of the Criminal Code. This request engages the victim’s right to privacy and a court-appointed lawyer will ensure that that right is respected as much as possible. The lawyer will act as a check who sees that proper procedure is followed and the accused receives only the information that is necessary to resolve an issue relevant to their defence from the victim’s medical records or other requested documents.
Of additional note, the Government of Ontario oversees a program that provides independent legal advice for victims of sexual assault. The program is available to any resident of Ontario who is at least 16 years old if the offence happened in Ontario. Anyone who completes the application process can receive up to four hours of free legal advice by phone or video call that does not include a court appearance.
What is Sexual Exploitation?
Sexual exploitation is a criminal offence set out under s. 153(1) of the Code. This provision makes it an offence for someone to touch a young person’s body, who is between the ages of 16 and 18, for a sexual purpose or to invite or counsel a young person to touch another person’s body for that purpose if the offender is in a relationship of trust and authority, dependency, or other exploitative relationship with a young person. Such a relationship may be found where the offender has a degree of control or influence over the young person. A person convicted of this can be sentenced if prosecuted as a more serious indictable offence, to a minimum of one year imprisonment and a maximum of 14 years. Or if prosecuted as a summary offence, the offender can be sentenced to a minimum of 90 days imprisonment, a maximum of two years less a day, and/or a $5,000 fine.
The Ontario Superior Court of Justice case of R. v. H.P., 2023 ONSC 182 is an example of a conviction for sexual exploitation. In that case the victim was a girl, who was exploited by her stepfather while living with him. The exploitation occurred over several years and involved the offender both touching her breasts and vagina, as well incite her to touch his own penis.
How do Sexual Assault Charges get Dropped in Windsor?
Sexual assault charges will rarely be dropped because it is not in the interest of the public for the Crown to do so. However, there are some instances where the charge will be dropped that usually involve there being no reasonable prospect of convicting the accused. This might happen where the victim withdraws the statement they made to the police. Though if the victim simply does want to proceed on the grounds that they do not want the accused to face legal consequences, the Crown may still try to prosecute the case.
In instances of minor sexual assault which may include something as simple as an unwanted hug or a quick touch of the buttocks, the Crown may agree to have the charges dropped if the accused signs a peace bond. Peace bonds are not a criminal finding of guilt. Cases where a peace bond is issued are generally those where it is not in the interest of justice to give an accused a criminal record. So, by signing a peace bond, the accused agrees to keep the peace and be of good behaviour, as well as abide by any other conditions ordered by the court for a specified period. If someone breaches their peace bond, they may be charged with a breach offence, and they will be required to pay an amount of money that was associated with the guarantee to abide by the peace bond.
What is a Publication Ban and How Does it Work?
A publication ban is an order that can be made by a court under s. 517 of the Code that prevents information related to the case from being published prior to its conclusion. Sexual assault is an offence that can severely harm an accused’s reputation, even if they are found not guilty. As such, publication bans limit the amount of speculation done in the early stages of the criminal justice process from being published until the facts of a case have been established. The ban specifically deals with any evidence of the offence, or information given, and representations made during proceedings.
Given the reputational harm an accused might suffer, the earlier an application for a ban is made the better. Such an application can be made at a bail hearing or the next earliest appearance if bail is not an issue. The application can be made either by the accused themselves, or a lawyer such as our counsel in Windsor. After the ban has been granted, the case will be referred to on the public docket of cases only by the accused’s initials instead of their name, and the information exempt from the ban is the age of the accused, the jurisdiction where the offence occurred and the specific charges against the accused.
When can Someone be Discharged from a Sexual Assault Offence?
Discharges are the lowest level of criminal sentencing. They are essentially a finding of guilt with no additional penalty. As part of the discharge, an offender does not receive a criminal record. There are two types of discharges, absolute and conditional. They are usually only offered by the Crown in sexual assault cases where the allegations are minor, and the accused has no criminal record. The offender may have to attend some form of counseling as a requirement for a discharge to become an available option.
Absolute discharges are ordered where it is not in the interest of justice to convict an offender because the conviction would have unfairly severe consequences on their life. After receiving an absolute discharge, the offender may live their life with no limitations. Conditional discharges impose a set of restrictions on an offender as ordered by a court. If the offender complies with these conditions, the record of the matter will disappear after a set time. If the conditions are breached, a conviction will be entered for the sexual assault charge against the accused.