La loi vos droits

Witnesses and Victims

Protective measures for victims and witnesses of sexual offences

Judicial proceedings dealing with sexual offences can sometimes be long and complex. Witnesses in such trials, particularly when they are also the victim, have a number of rights aimed at facilitating their testimony and protecting their privacy. Even more protective measures are available when the witness is under 18 years of age.

There are limits to the protective measures granted to a victim, however. In the majority of cases that go to trial, the victim has to testify in the presence of the accused in a courtroom open to the public. The victim also has to answer questions put to her by the lawyers.

In this Infosheet, Éducaloi informs you about the protective measures granted to the complainant in sexual offence trials, namely, the confidentiality of the judicial proceedings and the measures aimed at facilitating the complainant’s testimony.

How does a person file a complaint regarding sexual assault?

As with any offence, when a person is sexually assaulted, she can contact the police to get help and file a complaint. To find out more about what happens next, see Court of Quebec, Criminal and Penal Division in the Côtécour section of our site. The section explains all the steps in the judicial proceedings, from the arrest to the appeal, including the trial and the interim release of the accused.

After a complaint is filed, is the aggressor arrested and kept in prison until the end of the trial?

When a person is arrested by the police during an investigation into sexual assault, there is a good chance that he will be held in detention while waiting to go before a judge for the step called his “appearance”. This step generally takes place within 24 hours of his arrest. At the time of the accused’s appearance or in the days following it, the judge holds an investigation into whether or not to release him. He then makes a decision on the accused’s continued detention. The judge can order that the accused be kept in detention during the judicial proceedings, but this is rare. Most often, the judge orders the conditional release of the accused until trial.

If the accused is released, a number of conditions can be imposed on him. For example, he might be prohibited from going to the complainant’s residence (usually the complainant is the victim) or from communicating with her or other specific people (for example, her family, witnesses, other children). If the complainant is under 18, it is also possible to prohibit the accused from going to parks, playgrounds or other places frequented by children. The accused may also be forced to hand over any weapons he possesses and prohibited from having any.

If the accused fails to respect the conditions of his release, he is committing an offence and can be arrested by police. Also, the judge can cancel his release, meaning that the accused will be detained until the end of the proceedings.

Is a complaint still valid even if the victim only files it a long time after the assault?

Yes. There is no longer any time limit on filing a complaint for sexual assault. Up until 1983, the prosecution had to prove that a victim of rape (the offence replaced by sexual assault) had filed a complaint at her first opportunity to do so. Since then, this requirement has been abolished. No matter how many weeks, months or years have passed since the assault, the police have the power to investigate and, if the evidence justifies it, ask that charges be filed with the court. This allows adults to file complaints regarding assault they suffered as children. It’s important to remember that many victims hold on to their dark secret for a long time before deciding to file a complaint.

The only exception to this principle is the case of simple sexual assault. This offence is punishable either by summary conviction or indictment. To understand the difference between these two notions, see Côtécour, Court of Quebec, Criminal and Penal Division, in the section “Step-by-step guide to procedure”, under the heading “Appearance in court”. In practice, this means that for less serious assaults, the criminal and penal prosecuting attorney cannot file charges if six months have elapsed since the offence. In legalese, the case is said to be “prescribed”.

Other than that, there is no time limit on filing a complaint. But it should be noted that the more time that has passed, the harder it will be for the prosecution to prove the accused’s guilt. In most cases, the truth is more likely come to light when a complaint is filed right away.

Will the media publish the names of the complainant or witnesses?

Normally, this information can be published. However, the law sets out different mechanisms restricting the publication of information surrounding a case. These are called publication bans. This type of order prohibits anyone from reporting certain specific information, for example, in a newspaper or on television, the radio or the Web.

First of all, in all criminal cases, it is possible to ask the judge to ban the publication of any facts surrounding the case, either at the time of the bail hearing or the preliminary inquiry. Such orders remain in force until the end of the trial.

Under certain circumstances, particularly when sexual offences are involved, the judge can also prohibit the media from publishing the identity of the complainant or witnesses, or any information allowing them to be identified. The judge must issue such an order if asked to do so by the complainant, a minor witness or the prosecuting attorney.

Such an order would prohibit, for example, the publication of the victim’s name in a newspaper, or her description on a website detailed enough to allow the public to identify her. This would be the case if the publication revealed that the victim is the brother or sister of a named person. There is no time limit attached to this type of order, but the victim can ask the court to lift the ban.

Any person or organization that violates a publication ban is committing an offence and, if convicted, faces a maximum fine of $2000 or 6 months in prison or the two at the same time.

Is the trial open to the public?

As a general rule, criminal trials are open to the public, even when the trial is for sexual offences against a child. The public nature of the trial allows society to ensure that justice is rendered in an impartial way and that the parties in the case are not receiving special treatment, even if they are rich, powerful or famous.

Exceptionally, the judge can order that the hearing take place in camera. This means that the public isn’t allowed to enter the courtroom. This measure can be partial or total, i.e. the judge can require all members of the public or just certain individuals to leave the courtroom during the whole or part of the trial. Such a decision can be based on any of the following grounds:

• Public morals;
  
• Maintenance of order;
  
• Proper administration of justice, which can include, for example, the protection of witnesses under 18 and the protection of members of the judicial system who are involved in the proceedings.

The courts have held that a trial should not automatically be closed to the public simply because it concerns a sexual offence against a child.

Be careful not to confuse in camera trials with publication bans. It is generally possible to publish what is said during a closed trial. In the same way, a publication ban does not prevent the media and the public in general from entering a courtroom during a trial or any other proceeding.

Are witnesses allowed in the courtroom before they give their testimony?

Witnesses are usually not allowed to attend the criminal trial in which they are testifying. They are generally barred from the courtroom while waiting to testify, particularly during the testimony of other witnesses. This rule aims to prevent a witness from changing or adjusting his story after hearing the other witnesses testify. The exclusion of witnesses is obtained by request to the judge. Exclusion does not apply to the accused person or expert witnesses.

Is the complainant obliged to testify during the trial?

Normally, yes. Any witness who is summoned to court (with a document called a subpoena) is obliged to show up in court to answer the questions that are put to her. It is not normally possible to simply submit to the judge the written statement that the witness gave at the police station. When a case goes to trial, witnesses must give their testimony orally, before the judge.

However, the rules are less strict when it comes to complainants and witnesses who are considered vulnerable: those who are under 18 or who have a mental or physical deficiency. The judge can allow them to testify behind a screen or outside the courtroom using a closed-circuit video system, so they don’t have to face the accused. The judge grants permission for this if he believes it is a necessary step in obtaining a straightforward and complete account of the facts.

Finally, when a witness or complainant is under 18 and a video recording of their version of the facts already exists, this can serve as their testimony in court. The recording has to have been made within a reasonable time following the offence. The witness or complainant has to confirm in person before the judge that the recording is in fact their testimony. After that, the accused’s attorney has the opportunity to question the witness or the complainant. It should be noted that the police generally have the equipment needed to videotape witness statements, particularly those of sexual assault victims.

Can a witness be accompanied by a parent or friend?

Yes. A witness who is under 18 or has a physical or mental deficiency can ask to be accompanied by a person he trusts while he testifies. The judge must allow the request unless, for example, he thinks it would interfere with the conduct of the hearing. The person, who cannot be one of the other witnesses in the case, can stay by the witness’ side during her entire testimony. To prevent this person from having any influence, the judge can prohibit any communication between the witness and the person during the testimony.

Any witness can have a person they trust present, if the judge is of the opinion that this is necessary in obtaining a complete and straightforward account of the facts underlying the charges. To make his decision, the judge considers the witness’ age, any physical or mental deficiency, the type of offence concerned, the relation between the accused and the witness, and any other element that the judge feels should be taken into account.

Can a person accused of a sexual offence question witnesses himself?

Normally, no. The accused person cannot cross-examine a witness who is under 18, unless the judge allows it. For example, the judge can refuse to allow an accused to question a 10-year-old victim of sexual assault, in order to ensure the child is not intimidated. The judge can also refuse to allow the accused to question any other witness if he is of the opinion that this would prevent the witness from giving a complete and straightforward account of the facts.

If an accused is representing himself, the judge will appoint a lawyer to question the witness concerned.

In order for an accused to be convicted, does the complainant’s story have to be confirmed by another witness?

No. In the past, there were rules requiring that the complainant’s version be corroborated (confirmed) by other elements of evidence (another person’s testimony, medical report, etc.) before an accused could be convicted.

This rule no longer applies in Canada. A person can therefore be found guilty of a sexual offence on the basis of the victim’s testimony alone.

During the trial, can the accused’s lawyer ask questions regarding the complainant’s sexual habits?

During a trial for a sexual offence, it is normally forbidden to present “reputation evidence” or evidence regarding the general sexual behaviour of the complainant.

It may happen that the complainant already had sexual relations with the accused or another person before the assault. The accused cannot present this as evidence that the complainant should therefore not be believed or that she must have consented to the sexual activities in question.

As an example, let’s say that Natacha has already taken part in a sexual activity involving several people. This cannot be presented as evidence that, since she is so open-minded, she must have consented to the acts Ghislaine is accused of, or that Natacha shouldn’t be believed when she says that she didn’t consent.

In certain cases, however, the judge can decide to allow evidence regarding the complainant’s sexual behaviour. The accused must request this from the court in writing. The judge would then hold a hearing in camera (in private, without the public or jury) to decide if the evidence is admissible. During this hearing, the complainant cannot be forced to testify. In addition, whatever the judge decides regarding the accused’s request, the things that are said during this hearing cannot be published in the media.

To make his decision, the judge has to consider certain factors, such as: the accused’s right to a full and complete defense, the interests of justice, the possibility of making a just decision, the need to avoid discriminatory opinions or prejudices, the complainant’s dignity and right to privacy, the complainant’s right to security of the person, and any other factor that the judge feels is relevant.

Is the accused’s lawyer allowed to access the complainant’s medical or psychological records?

The following are all examples of private documents: the complainant’s personal diary, her psychological or psychiatric records, or the complainant’s file with an organization that assists victims of sexual offences. As a general rule, the accused cannot demand to see these documents or any other of the complainant’s personal files.

In exceptional circumstances, however, the accused can ask for the judge’s permission to consult the complainant’s personal files. Before allowing the accused or his lawyer to consult these files, the judge must be convinced by the accused that the file is necessary in allowing the accused to make a complete defence, and that the release of the file respects the complainant’s right to privacy as much as possible. Furthermore, the communication of the complainant’s personal files has to be in the interest of justice. For example, a judge can refuse to allow an accused access to the victim’s personal diary, if this would potentially discourage future victims of sexual offences from filing a complaint.

That being said, if the judge allows the accused or his lawyer to read the complainant’s personal files, he can still set limits on their access. For example, the judge can provide an edited version of the complainant’s personal document. The judge can also prohibit the accused from making photocopies or he can require the accused to come to the courthouse to consult the documents there.