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Legal Studies: Sex Violence > Midterm 1 > Flashcards

Midterm 1 Flashcards

1
Q

Two Aspects of Burden of Proof and who do they fall on? (Crown or Defense)

A

Primary and Secondary Burden

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2
Q

Primary Burden of Proof

A

Prove the accused’s guilt beyond a reasonable doubt

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3
Q

Secondary Burden

A

Putting an issue before the court using all the available evidence

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4
Q

Exceptions to the Primary Burden of Proof being on the crown

A

Insanity - The presumption of sanity is in our criminal code, the accused must prove his insanity to the ‘reasonable satisfaction of the jury’

Statutory - Number of statutes which operate in a way of placing the innocence/or an element of it on the accused

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5
Q

Difference between presumptions of ‘law’ and of ‘fact’

A

Presumptions of law - rules of evidence that affect how a fact in issued is proved.

Presumptions of fact - inferences drawn from established facts

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6
Q

What is Prima Facie?

A

Term is used indicated that a legal claim has sufficient evidence to proceed to trial or judgement.

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7
Q

Overview of the Criminal Code
(year made, what is in it, what it impacts)

A

Enacted in 1892 by Fed. Government, creates and lists every criminal offence in the country - along with its definition, and penalty/classification. Also deals with procedural issues: protocols and guidances for arrests and such

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8
Q

What is common law?

A

It’s precedent (judicial decisions from previous cases)

Applies and interprets statute law

Stare decisis “to stand by things decided”

(higher court, more persuasive the authority)

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9
Q

Who has jurisdiction to legislate criminal law?

A

Parliament

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10
Q

What is Quasi-Criminal?

A

Offences created by city council or provincial legislation - commission of these offences result in fines but similar conduct can result in provincial and federal charges.

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11
Q

Implications resulting from classification of offence

A

Investigation: Limitation period
Trial : Venue, Preliminary Inquiry
Sentencing: min/max penalty, ancillary orders
Appeal: Venue

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12
Q

What is a preliminary inquiry?

A

Pre trial in indictable offences where the defendant elects to go to supreme court and max penalty of is 14 years or more. (Examples, is there enough evidence to go to trial? Accused wants to hear from certain witness to see how strong the case against them is.)

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13
Q

Categorization of Offences

A

Hybrid, Summary, and Indictable

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14
Q

Overview on Hybrid Offences

A

Most offences in CC are hybrid, crown discretion on how to elect, signals parliament’s view of seriousness of offences. Factors that determine election: seriousness of offence, accused’s criminal record, limitation period

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15
Q

Overview on Summary Conviction
(Max Length, form, which court?)

A

Less Serious than indictable offences, max sentence is 2 years less a day. Most are typically in the form of a ticket with summons to attend court, exclusive jurisdiction of provincial court

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16
Q

Indictable Offenses

A

Most serious offences, often found in CC, but also federal statutes including CDSA. Higher penalties, as high as life in prison and 3 court procedures. Section 469 and 553 offences

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17
Q

Section 469 offences venue

A

Trial only in NS supreme court

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18
Q

Section 553 offences venue

A

Trail only in NS provincial court

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19
Q

Other indictable offences venue (most)

A

Accused elects trial venue (Supreme or Provincial)

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20
Q

3 Levels Sexual Assault Offences

A

Sexual assault, Sexual Assault with a weapon or causing bodily harm, aggravated sexual assault

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21
Q

Sexual Assault offence overview

A

Hybrid - Summary max 18 months; 2 years less a day and min 6 months if under 16
Indictable Max 10 years; 14 years and min 1 year if under 16

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22
Q

Sexual Assault with a weapon or causing bodily harm (classification of offense + sentencing guidelines)

A

Indictable Max 14 years; use of a firearm min 4 years (min 5 years if prohibited/restricted firearm)

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23
Q

Aggravated assault
(sentencing and classification)

A

Indictable (wounded, maimed, disfigured), max life in prison, min 5 years if restricted prohibited firearm, min 5 years if the victim is under 16

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24
Q

What is the difference between sexual assault with a weapon/causing bodily harm versus aggravated sexual assault

A

Severity of the injuries inflicted on the victim

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25
Q

What is sexual assault as defined in the CC?

A

An assault committed in circumstances of a sexual nature.

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26
Q

How is sexual nature determined?

A

part of the body being touched, nature of contact, situation where it happened, words and gestures accompanying the touching and any other circumstances surrounding the assault

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27
Q

What does the crown need to prove in a sexual assault case?

A

That the accused knowingly committed an assault

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28
Q

Elements of the Offence of sexual assault (mens/actus)

A

Actus Reus - touching, of a sexual nature, in the absence of consent

Mens Rea - Intention to apply force, knowledge of or being reckless/blind to lack of consent, not necessary to prove accused was seeking gratification

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29
Q

After Accused Charged with Offence(s) - Police Options

A

Police options: release on promise to appear and/or undertaking OR Held for bail hearing in court next business day

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30
Q

After Accused Charged with Offence(s) - Trial Venue

A

(All offences to go provincial court for arraignment - reading of charges to accused)

Most bail hearing in Provincial court unless s.469 (murder) or others then go to Supreme

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31
Q

How are criminal charges laid?

A

Information (document outlining details to alleged offences) which starts criminal court process

Details include - Name/DOB of accused, Date/location of offence, alleged offence(s)

Document is then filed with the court

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32
Q

Election by Crown and Election by Accused

A

Summary/indictable and choice of court for trial

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33
Q

Criminal Court System Overview (4 courts)

A

Provincial Court, Supreme Court NS, Court of Appeal and Supreme Court of Canada

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34
Q

Provincial Court

A

Busiest court, summary offences and indictable offences (when accused elects); provinical offences, deals with most aspects of bail, preliminary inquiry

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35
Q

Supreme Court (NS)

A

Indictable offences where accused elects and s.469 offences; summary conviction appeals, only court hthat has jury trials

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36
Q

Court of Appeal

A

Appeals decisions of Supreme Court (NS)

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37
Q

Supreme Court of Canada

A

Appeals decisions of court of appeal

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38
Q

Sentencing (bound by..)

A

Criminal Code for min/max sentences and also by case law that establishes sentencing ranges

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39
Q

Basic Principles of Criminal Law : from moment someones is charged until the end of trial

A

Presumption of Innocence, Burden of Proof on the Crown, Proof of guilt beyond a reasonable doubt, proof is made during a fair and public hearing

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40
Q

What is presumption of innocence?

A

Cannot convict based on character but rather facts or evidence, accused doesn’t need to reply to charge or provide police with statement/explanation. Assumes innocence until proven guilty beyond a reasonable doubt

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41
Q

Burden of Proof (Onus of Proof)

A

Burden is always on Crown, legal burden - requires Crown to prove guilt beyond a reasonable doubt. Evidentiary burden - some evidence be presented on an issue

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42
Q

BeyondReasonable doubt - Standard of proof

A

Crown must prove every element of the crime beyond a reasonable doubt, not ‘likely’ or ‘probably guilty’, if reasonable doubt jury must acquit, jury must be unanimous, dont need reasons just decision.

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43
Q

Number of jurors

A

Need to start trial with 12, deliberations max 12/min 9

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44
Q

Fair and Public Hearing Rules (some excepection, such as acused being between 12-17)

A
  1. Justice must be done and be seen to be done
  2. accused entitled to unbiased and impartial adjudicator
  3. members of the permitted to attend trials
  4. police must conduct investigations and with accused’s right in mind,
  5. crown must provide a full and timely discourse
  6. scrutiny of the judicial process by public
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45
Q

Judges - Decision Making

A

Independent in their decision making from the executive and legislative branches of government, well-paid to protect against undue influence

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46
Q

Judges - Appointing

A

Appointed after spending at least 5 years practicing law and screen by judicial screening committee. Committee is comprised of current judges, lawyers, civilian members, and police rep. - both provincial and federal committee. When candidates pass screening process - recommended to Ministry of Justice.

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47
Q

Canadian Criminal Law (comprised of..)

A

Both common law and statutory law

48
Q

Where do sexual assault trials happen in NS?

A

NS Provincial Court, and NS supreme court (Judge alone or Judge and Jury)

49
Q

Preliminary Inquiry (what is it/where is it held and overview)

A

In provincial court, not available unless max penalty of 14 years or more, streamlined witness list, discovery (provides accused opportunity to hear evidence in advance of trial), evidence taken at face value

50
Q

What offences are Jury Trials for? and how many jurors

A

Only for indictable offences when accused elects for jury (except in 469 offence where it’s required) Comprised of 12-14 jurors

51
Q

Juror Eligibility and how much are they paid a day?

A
  1. Must be citizen, residence in province and age of majority
  2. Cannot be a judge, law student or any employee of justice.
  3. Can’t have a criminal conviction where a sentence of 2+ years was served
  4. can apply for exclusion based on hardship (will loose job, family or health issues),
  5. jurors are paid $40/day + travel
52
Q

How are jury pools created and jury selection process

A

Sheriff summons jurors names on jury list to appear on first day of jury session, attendance is taken. Jurors are then either excluded, denied, or put aside, can also advise of bias that would impact his/her impartiality. Cards with remaining names randomly selected from box.

Challenge for cause allows Crown and Defense to question prospective jurors about bias in hearing case based on race, media exposure, personal connection, etc.
If jury pool exhausted, Sheriff can pluck ‘talesmen’ off the street.

This process continues until jury is fully selected. Once jury is selected, trial begins with Crown’s opening address.

53
Q

Role of the jury in trial?

A
  1. to ‘find facts’ based on evidence they accept
  2. Using those facts, the jury then decides whether the Crown has proven the case against the accused beyond a reasonable doubt
  3. In determining facts, jurors should listen, see, and appreciate the evidence. May take notes.
54
Q

Rules for Jury during trial

A
  1. Jurors are not entitled to communicate with anyone about case
  2. Nothing can be disclosed about what happens in jury room. This allows jurors to be frank and open about their views of the case when among jury members.
  3. If interference with jury during trial, judge has direction to discharge jury and order new trial with new jury (ex. Improper communication, publishing of inadmissible evidence, intimidation in jury room etc.)
55
Q

Jury Deliberations:at what point in the trial do they happen? where do they happen? Verdicts must be….

A

begins after all evidence heard, addresses of counsel, and instruction by judge.
Protected in their jury room during deliberations by Sheriff who stands outside room.
Methods upon which jury reaches decision is not disclosable
Juries are entitled to take their time in deliberations. May review evidence.
Questions may be asked by jury foreman to the judge on note in presence of accused/Crown
Judge will restrict hours of deliberations each day to protect against exhaustion.

Verdict must be unanimous, whether guilty or not guilty. If not unanimous – ‘hung jury’

56
Q

What is consent and guidelines?

A

Voluntary agreement of the victim to engage in the sexual activity in question:

  1. Must be given for each and every sexual act
  2. Must be given at time of the sexual act (e.g. no advanced consent)
  3. Cannot be “implied”
  4. Can be revoked at any time, ongoing
  5. Must be given by someone who is capable of consenting
57
Q

How to tell if consent given was valid?

A

Crown must prove that victim voluntarily agreed to engage in the sexual acts in question

There are circumstances where consent is ineffective or vitiated if the victim submits or does not resist due to application of force, threats or fear of force, fraud, and exercise of authority.

58
Q

What outlines the capacity to consent?

A

Appreciating the nature and quality of the sexual activity

Knowledge of the identity of the person engaging in sexual activity

Understanding she could agree or decline to engage in the sexual activity.

58
Q

When is consent invalid?

A
  1. The agreement is expressed by someone other than the victim
  2. The victim is incapable of consenting
  3. Abuse of position of trust, power, or authority
  4. The victim expresses a lack of agreement
  5. The victim expresses a lack of agreement to continue
59
Q

Age of Consent

A

Children under 16 CANNOT consent to sexual acts with an adult (age of consent was 14 until 2008

16- & 17-year-olds CANNOT consent if:
Sexual partner is in a position of trust or authority (teacher/coach/etc)
Young person is dependent on their sexual partner (stepparent)
Relationship between young person and their sexual partner is exploitive.

60
Q

Close in Age Exceptions

A

14- or 15-year-old can consent to sexual activity if partner is less than 5 years older
12 or 13 years old can consent to sexual activity if partner is less than 2 years older

these exceptions do not apply where there is a relationship of trust, authority, dependency, or any other exploitation of the young person.

61
Q

When is Honest But Mistaken Belief in Consent (HBMB) not applicable?

A

Accused cannot rely on HBMB where:

The accused belief arose from their:
Self-induced intoxication; or
Recklessness or willful blindness; or
They did not take all reasonable steps in the circumstances to ascertain if the victim was consenting

Mistake of law is no defence
Example: a belief that silence, passivity, or ambiguous conduct constitutes consent
Example: a belief that age of consent was 14 years old.

62
Q

Reasonable steps in getting consent

A

Not taken where the accused relies on a lack of resistance from victim (victim’s failure to resist is not a defence)
Must be some words or conduct that the accused can say that he took to establish how he attempted to find out if victim was consenting

63
Q

Definition of Sexual Assault with a weapon or causing bodily harm

A

Every person commits an offence who in committing a sexual assault
1. Carries, uses, or threatens to use a weapon or an imitation of a weapon.
2. Threatens to cause bodily harm to person other than the complainant.
3. Causes bodily harm to the complainant (chokes, suffocates);
4. Is a party to the offence with any other person.

This offence requires a sexual assault in circumstances where the victim suffers bodily harm, chokes/strangles the victim, or the accused uses a weapon during the commission of the offence.

Consent is not a defence to sexual assault causing bodily harm
A person cannot consent to bodily harm

64
Q

Definition of Aggravated Sexual Assault

A

Everyone commits an aggravated sexual assault who commits a sexual assault, wounds, maims, disfigures, or endangers the life of the complainant.
His offences requires a sexual assault in circumstances
(again, consent is no defence to the offence of aggravated sexual assault)

“wounds” – breaking of the skin
“Maims” – Injured to the extent that he/she is less capable of fighting back
“Disfigures” - more than a temporary maiming of the figure or appearance
“Endangers the life” – does not require bodily harm but must endanger the victim’s life and not merely have the potential to endanger life.

65
Q

Common Issues in Sexual Assault Cases

A

In most sexual assault cases, the material issues are:
Where there was contact of a sexual nature
Identify the perpetrator
Whether the victim consented to the sexual touching
Including whether she had capacity to do so
Whether the accused held an honest but mistaken belief in consent

66
Q

Rape mythswhat are they, and how they can/can’t be used in a trial

A

Its impermissible for the defence to introduce “prior sexual activity” evidence of the victim in a sexual assault trial that engages rape myths.
The evidence cannot be used to try to establish that:
The victim is more likely to have consented to the sexual activity in question ; or
The victim is less worthy of belief

67
Q

Can the victim be less worhty of beleif is they delay dislcosing assault? Why may victims wait to come forward?

A

No adverse inference can be drawn by the judge or jury because the victim delayed disclosure of the sexual assault (s. 275 CC)
Research has provided that victims often delay discourse for very legitimate reason – i.e., fear, relationship dynamic, dependence on victim, etc.
Many “historic” sexual assault cases are prosecuted years after the fact
No limitation period for indictable offences.

68
Q

Victim’s sexual history

A

Sexual reputation evidence is not admissible to challenge the victim’s credibility (s. 277)
Example: because the victim had sex w/the accused on prior occasions they are more likely to have consented during the event in question.

69
Q

Historic Sexual Offences

A

Several sexual offences were repealed from the CC; however, individual can still be charged w/ these appealed sections so long as the offence date pre-dated the amendment. (gross indecency, indecent assault on a female, etc.)

70
Q

Sexual Interference- what is the crime, what is it’s classfication and sentecning terms for each

A

Hybrid - Every person who, for a sexual purposes, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the person under the age of 16 years old.
Indictable offence – max 14 years and minimum 1 year
Summary offence - max 2 years less a day, minimum 90 days

71
Q

Mistake of Age Defence

A

Accused would have to have taken “all reasonable steps” to ascertain the age of the victim
Would have to articulate the reasons why he believed the victim was “of age”
If there was no consent (in the sense of two adults), this defence would be in applicable.

72
Q

Invitiation to Sexual Touching

A

Hybrid - Every person who commits an offence who is in a position of trust or authority towards a younger person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with ta young person that is exploitative of the young person and who commits invitation to sexual touching or sexual interference.
Indictable- Max 14 years and minimum 1 years
Summary – max 2 years less a day and minimum 90 days

Factors to Consider:
Age of young person
Age difference between offender and victim
Evolution of relationship
Degree of control/influence over young person

73
Q

What are the 3 child pornogrpahy offences?

A

Accessing child pornography, Possession of Child Pornography, Making and Distribution of Child Pornography

74
Q

What is considered child porn legally?

A

Photo, film, video, or visual representation:
That shows a person who is or is depicted as being under the age of 18 years old and is engaged in or depicted as engaged in sexually explicit activity; or
The dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of 18 years old.

Written material, visual representation or audio recording that advocated or counsels’ sexual activity with a person under 18 years old.

Written material whose dominant characteristic is the description, for a sexual purpose of sexual activity w/ a person under 18 years old.

75
Q

Sentencing for Accessing child pornography

A

Hybrid
Indictable – max 10 years and minimum 1 year
Summary – max 2 years less a day, minimum 6 months

76
Q

Sentencing for Possession of Child Porn

A

Hybrid
Indictable – Max 10 years, minimum 1 year
Summary – max 2 years less a day, minimum 6 months.

77
Q

Sentencing for Making child porn or distributing it

A

Indictable

Max 14 years, minimum 1 year

78
Q

R v W.(D.) test use and guidelines

A

In a case where the complainant and accused testify about certain events, the Court must apply this legal test to determine whether the Crown has proven their case beyond a reasonable doubt.

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

79
Q

Child Witness Credibility now and historically

A

Historically, children were viewed as being inherently unreliable witnesses. Judges were obliged to caution juries about the inherent frailties of children’s evidence. Cases would require corroboration if a child was alleging abuse.
This is no longer the case!

Today, children frequently testify as witnesses in cases of sexual abuse and they are no longer regarded as inherently unreliable witnesses.

80
Q

Difference between reliability and credibility

A

Credibility relates to a witness’ honesty or truthfulness.
Reliability relates to a witness’ accuracy in relating their evidence.

81
Q

Assessment of a child’s credibility today

A

Courts should approach the evidence of a child in a common sense manner and courts should not impose the same standard on children as adults

A child must be competent to testify before giving evidence

Children under the age of 14 are presumed to have the capacity to testify. A hearing is only if capacity is being challenged, party challenging witness must prove incapacity.

82
Q

Character Evidence

A

As a general rule, the Crown cannot introduce the accused’s bad character evidence to draw an inference that he/she is more likely to have committed the offence charged

This is called propensity reasoning and it is impermissible in a criminal trial

if the accused puts their character in issue then it opens the door for the Crown to introduce evidence of the accused’s bad character By the same token, the prior sexual history of the complainant cannot be used to advance an argument based rape myths

83
Q

Browne v Dunn

A

A cross-examiner cannot rely on evidence that is contradictory to the testimony of the witness without putting the evidence to the witness in order to allow them to attempt to justify the contradiction
It is a rule of fairness to the witness (“anti-ambush rule”)

If the accused violates this rule, the possible remedies include:

The judge placing less weight on the evidence that was not put to the witness
Consider the lack of cross-examination of the witness in assessing the credibility of the accused
Permit the recall of the witness to give them an opportunity to respond to the apparent inconsistencies in their evidence

84
Q

Physical Evidence

A

When physical evidence exists, it has the potential to be highly incriminating

The legal authority to search and seize physical evidence will depend on the circumstances:

Search incident to arrest
Consent search
Search pursuant to a warrant
Discarded items

85
Q

Search Incident to Arrest

A

The common law recognizes a police officer’s power to search a person incident to that person’s arrest.

It has been established that this search power may include the authority to fingerprint or conduct a “frisk” search of the accused, to search a car driven by the accused, and to search a backpack.

It does entitle police to conduct more invasive searches of the person with a view to obtaining bodily samples as evidence (i.e. cell phone data, blood, hair, penile swab etc.).
These types of searches would require a warrant.

86
Q

Consent Searches

A

Authority to conduct a search can also be based on a person’s consent

When an accused provides consent to a search or seizure without a warrant, strict criteria are in place to ensure that the consent is voluntary

Crown must demonstrate that the accused decide to waive his/her constitutional right with full knowledge of the existence of the right and an appreciation of the consequence of waiving that right.

87
Q

Search Pursuant to A warrant

A

Judicial authorization to conduct a search at a place and seize a thing(s)

It is often the case that a search warrant is obtained to search and seize evidence from the suspect’s residence

The warrant to search a residence can extend to the seizure of computers or cell phones, however specific prior authorization is required to search the data contained within the devices

88
Q

DNA warrants

A

High expectation of privacy in DNA evidence (i.e. blood, hair follicles, dental impressions etc.)

The police may also obtain a sample of the accused’s bodily fluids by way of that person’s consent

Voluntary consent requires that the accused be made aware of the right to refuse consent, the potential consequences of giving DNA, and the uses that can be made of the sample.

The accused’s intoxication can vitiate consent to give a sample of bodily fluids

89
Q

Discarded Items

A

A seizure by police may also be legal when the accused has abandoned his/her privacy interest in the item seized

Abandonment is a question of fact
Courts will look to the conduct of the accused and not on the conduct of the police.

Examples:
Garbage placed outside home in the usual spot for collection was found to be abandoned
When an accused attempts to flee police, any clothing that is left behind, such as a jacket, will be considered abandoned
Discarded chewing gum

90
Q

Search for Data

A

The privacy interests implicated in the search of a computer or cell phone differ from those interests implicated in the search of other places

These places are able to store a large amount of data concerning the user’s interests, habits, and identity

Prior judicial authorization is required to search the data contained within a computer seized

The Supreme Court of Canada has found a reasonable expectation of privacy in subscriber information (i.e. name and location attached to a computer’s IP address) and the police will need a warrant (a production order) to retrieve this information from an Internet service provider

91
Q

What is Bill C-75

A

Sweeping changes to the Criminal Code, including the law of bail, jury selection, the classification of offences, intimate partner violence, removed provisions that were ruled unconstitutional by the SCC, and restricted the availability of preliminary inquiries.

92
Q

Bill C-75 - Bail

A

Reverse onus for those who commit a violent offence involving an intimate partner, if they have a prior conviction for violence against an intimate partner

Requires courts to consider prior intimate partner violence convictions when determining whether to release the accused or impose bail conditions

93
Q

Bill C-75 - Offenses

A

Clarifies that “strangulation” constitutes an elevated form of assault and a more serious form of sexual assault (see: s. 272(1(c.1))

Before amendment, this specific pathway to liability did not exist.

Now, if an accused “chokes, suffocates or strangles the complainant”, the offence of “sexual assault bodily harm” is made out, which attracts a potential higher penalty than “sexual assault”.

94
Q

Bill C-75 Preliminary Inquires - Changes to when they are allowed to happen

A

Restricts preliminary inquiries to offences liable to a maximum 14 years or more of imprisonment

This greatly reduces the number of preliminary inquiries, while maintaining their availability for more serious offences

This frees up court time in provincial courts
This alleviates the burden on some witnesses and victims by preventing them from having to testify twice in those cases

95
Q

Bill C-75 - Unconstitutional Provisions

A

Cleans up Criminal Code provisions that have previously been ruled as unconstitutional
Anal intercourse
Abortion
Vagrancy
Keeping a bawdy house

96
Q

Reasons why those have been a victim of sexual violence do not report assaults to police

A
  1. Lack of confidence in CJS
  2. Sense of shame or self blame
  3. Fear of not being believed
  4. Fear of facing the perpetrator
  5. Potential repercussions arising from going to the police
  6. Lack of understanding that what happened was an offence or that it was a minor event
  7. Concern about consequence to the perpetrator
97
Q

Testimonial Aids

A

There are various provisions in the Criminal Code that provides protections for witnesses testifying in a criminal trial. The testimonial aids are aimed at promoting the candid testimony of the victim, particulary providing an environment where they do not have to face their attacker in open court.

Examples:
Exclusion of the public
Screen
CCTV
Support Person
Application to have counsel cross-examine complainant

98
Q

Testimonial Aid - Exclusion of The Public

A

In determining whether it is appropriate to exclude the public, the Court shall consider:
1. Society’s interest in encouraging the reporting of offences and the participation of victims and witnesses.
2. The ability of the witness to give a full and candid account

Important to have ‘fair and public trial’ - Sometimes the Court may request that members of the public leave the court during particularly sensitive evidence to avoid causing undue distress to the complainant.

99
Q

Testimonial Aid - Screen or Remote Testimony by CCTV

A

Judges have the authority to order that a screen be placed in front of the witness, which blocks the witness’ view of the accused or that the witness testify from a remote location via CCTV.

If the witness is under 18 years old or has a mental or physical disability which makes communicating their evidence difficult, the judge shall permit the witness to testify behind a screen or via CCTV - unless the order would interfere with the proper administration of justice.

100
Q

Testimonial Aid - Support Person

A

The legal test is the same as for a screen or CCTV
This allows a person to sit next to the witness as they testify
The support person is not permitted to be a witness in the trial and cannot communicate with the witness as they testify (either verbally or non-verbally)
In some jurisdictions, support dogs have been permitted to sit next to the witness as they testify, particularly for child witnesses

101
Q

Application for Counsel to Cross-Examine Complainant/Witness < 18

A

Testimonial Aid

If accused is self-represented, the Crown or witness can apply to the Court to have legal counsel appointed for the sole purpose of cross-examining the complainant and/or any witness under 18 years old

This avoids intimidation/retaliation during cross-examination and unnecessary interference with the candidness of the witness’ testimony
The legal test is contained in Section 486.3 of the Criminal Code, which is very similar to the test for a screen or CCTV

102
Q

Publication Bans

A

An order directing that any information that could identify the victim or a witness shall not be published. The judge shall order the publication ban if the Crown, victim or witness apply.

The Court is obligated to inform the victim(s) and any witness under 18 years old of their right to apply for a publication ban
- Information that is banned from publication could include the name of the victim, the name of the accused, school, place of employment etc. if that information would tend to identify the victim.

103
Q

Third Party Records

A

To have access to personal records of the victim, the accused must make an application to the trial judge to establish that the records are likely relevant to an issue at trial.
This requirement gives consideration to the victims privacy interests and the accused’s fair trial rights.

Some examples of these records include (contain personal information for which there is a reasonable expectation of privacy):
Health records
Therapeutic records
school records

104
Q

Bill C-51 - Rape Shield

A

Expand the “rape shield” provision to include communications of a sexual nature or communications for a sexual purpose.
Now evidence related to the victim’s communications of a sexual nature or a sexual purpose falls into the category of ‘prior sexual history’ and can’t be used to support “twin myth”.

105
Q

Victim Bill of Rights (Bill C-32)

A

provides victims with the right to access information about the offender who harmed them at the investigative stage, court stage, and corrections stage.
This legislation acknowledges the rights and integral role of victims in the CJS

Every victim has the right, on request, to information about
1. The status and outcome of the investigation into the offence
2. The location of proceedings in relatin to the offence, when they will take place and their progress and outcome

Victims have the right:
to have their privacy considered by the appropriate authorities in the CJS
to have their identity protected
to request testimonial aids when testifying in court
to present a victim impact statement at sentencing
to have the court consider making a restitution order against the offender.

106
Q

Importance of Language

A

Use language that is relevant to the person’s age and abilities​

Clarify terms the people use (kids may label body parts differently than adults)​

There is nothing mutual or consensual about sexual or physical abuse ​

For example: ​
“kissing” - “forced his mouth on hers”​
“oral sex” - “forced his penis into his mouth”​

​

107
Q

Trauma Informed Questions

A

Trauma-informed questions are designed to create a safe and supportive environment for individuals who may have experienced trauma. These questions recognize the potential impact of trauma on a person’s well-being and aim to foster trust, respect, and collaboration. When interacting with someone who has experienced trauma, it’s crucial to approach them with sensitivity and avoid triggering or retraumatizing them

108
Q

R v Barton 2019

A

Barton was a case first degree murder allegation and the death of the victim was due to a sexual act - the SCC considered how the trial was wrong and how the jury was informed. And how lack of attention to victim, stereotypes, and myths - impacts verdicts. In this trial language used was “that native girl”. Barton convicted of manslaughter.

109
Q

Sexual Violence myths vs reality

A

Myths : real victim would cry out, fight back, would avoid perpetrator, strangers perpetrator sexual violence, they would tell someone immediately after.

Reality : theres no right way for victim to fight back, post-conduct contact happens for a variety of reasons, majority of SV is perpetrated by someone the victim knows. Research shows majority of victims don’t report right away

110
Q

Responses to SV

A

Theres no right response, theres no right or wrong way for a victim behave after an assault.

111
Q

Vitiated Consent

A

Agreement by someone other than victim, complainant is unconscious, complainant is incapable of consenting, consent induced by abuse/power of authority, expressed by words or conduct a lack of agreement

112
Q

What is NOT consent

A

Victim doesn’t have to say no, silence passivity or ambiguous contact, NO broad advance consent, cannot be implied by virtue of relationship

113
Q

Serach incident to arrest require:

A

The individual searched to have been lawfully arrested
The search to be truly incidental to the arrest in the sense that it is for a valid law enforcement purpose related to the reasons for the arrest (i.e. “pat down search” for officer safety)
The search is to be conducted reasonably

114
Q

Corroborating Evidence

A

No corroborating evidence is required – but sometimes it does exist which helps the prosecution ​

the fact that they got a SANE exam done corroborates the complainant​
R v Mugabo 2017 ONCA 323 ​

Outward expressions of emotions are indeed corroborative evidence that the offence occurred.

115
Q

Considerations for Testimonial Aid if witness isn’t under 18 and doesn’t have a disability

A

The age of the witness
The witness’ mental or physical disabilities, if any
The nature of the offence
The nature of the relationship between the witness and the accused
Whether the witness needs the order for their security or to protect them from intimidation or retaliation

116
Q
A

Legal Studies: Sex Violence (1 decks)

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