Resources

What is sexual violence and what legal avenues are available?

Definitions
Legal Options
Free Confidential Legal Advice
What to expect if you report sexual assault to the police
How can a lawyer help you in the criminal justice process
Other Resources
Can We Help You?

Definitions

Sexual violence can take many forms but in the most general terms, it includes any unwanted conduct violating a person’s sexual integrity. It can be broken down into the legal offences of sexual assault and sexual harassment.

Sexual Assault

Any actual or threatened unwanted contact violating a person’s sexual integrity is sexual assault. It is a crime and carries civil liability. It also violates an individual’s human rights in specific situations.

Unwanted sexual contact means that no consent was provided. Consent must be given by someone who has the capacity to give it and it must be voluntary. Silence does not equate to consent. It cannot be implied and is not established by submission or lack of resistance. If consent is extracted through coercion or fraud it is not valid. In situations where consent is obtained by a person who is in a position of trust or authority over another, that consent is not valid. An example of such a situation is between an adult and a child but it can extend to other situations. In Canada, the legal age of consent is 16. A young person under the age of consent is deemed incapable of consenting to sexual contact unless it is by another young person in specific circumstances.

Sexual Harassment

Any unwanted sexual advances, verbal or physical is sexual harassment. However sexual harassment is not a criminal offence unless it fits the definition of sexual assault or another sexual offence (ie voyeurism, publication of an intimate image, or criminal harassment).

Sexual harassment is a human rights violation in certain circumstances. It is considered discrimination based on sex related to the provision of services, goods and facilities, housing, contracts, employment, and vocational associations. This includes workplace sexual harassment but can include other situations as well.

Information Bellehumeur Law

Information

What is sexual violence and what legal avenues are available?

Free Confidential Legal Advice for Survivors of Sexual Assault

Why Get Legal Advice?

Legal advice is confidential and a highly recommended way of understanding the best way to navigate the aftermath of a sexual assault and a way forward that protects the interests of sexual assault survivors. Legal advice can offer an understanding of how different legal processes look and interact with one another.
  • For example, information obtained from campus investigations of sexual assaults may end up being used in a related criminal or civil proceeding. Sometimes, this can actually work against the interests of the survivor of sexual assault.

Bellehumeur Law does not necessarily discourage reporting. Rather, we encourage survivors to seek legal advice to help them navigate the complicated legal landscape in a confidential setting.

Free Independent Legal Advice

Independent Legal Advice (ILA) is a program that offers survivors of sexual assault living in Ontario up to 4 hours of free confidential legal advice. A survivor of sexual assault does not have to intend to report the assault, press charges, or sue their assailant in order to obtain free legal advice through ILA. While this service benefits all survivors of sexual assault, it is a support that is often overlooked.

Eligibility

A survivor of sexual assault is someone who participated in any type of sexual activity (it does not have to involve intercourse) and did not provide consent for that type of sexual activity. Survivors of sexual assault of any gender who are at least 16 years of age and live in Ontario are eligible to obtain free legal advice through ILA.

How to apply for up to four hours of free legal advice through ILA:

1. Complete this voucher request form

2. Email the completed form to ILAvoucher@ontario.ca

A) If you are eligible, you will receive an email within three business days with:

  • a list of lawyers you can contact and
  • instructions on how to use your vouchers.
B) If you are not eligible, you will get an email with an explanation within three business days.
Applying for an ILA voucher does NOT put your privacy or confidentiality at risk.

 

If you have questions about this process, the ILA can be reached at 1-855-226-3904. You can also visit the ILA information page online.

What to expect if you report a sexual assault to the police

  1. Police interview

First, if you called the police about a sexual assault, you will likely have an appointment with a sexual assault investigator. At that appointment, you will give a videotaped statement to the police. The police officer has a duty to disclose all of this information to the Crown who then must disclose your video statement to the defence lawyer if charges are laid. Any evidence you give to the Crown, police or Victim Witness Assistance Program (VWAP) employee throughout this process will be disclosed as evidence if the case proceeds.

  1. Investigation by police

Next, the police conduct an investigation. They look for corroborating evidence, meaning evidence that supports the statements you gave to them during the police interview. They are looking to see if there are reasonable and probable grounds for laying charges. This means that the police have evidence to believe that the accused could have committed the offence.

In sexual assaults, there are often very few witnesses, but there are still ways to corroborate the peripheral details. The police investigation can gather that possible evidence. Even if you did not have a sexual assault kit completed or a long period of time has passed since you were sexually assaulted, the police may still find evidence to corroborate (support) the statement you provided in the interview. For example, if you told the police during your interview that you shared a taxi with a friend on the evening that you were sexually assaulted, the police can speak to that person to corroborate that part of your statement. Social media and text messages can also be a part of the evidence gathered during the police investigation.

  1. Charges are/are not laid

Based on the investigation, a charge may or may not be laid. If the police do not believe an offence was committed it will be categorized as ‘unfounded.’ However, there are other reasons the police use their discretion to not lay a charge. There is no appeal process to challenge the police’s decision to not lay charges.

Robyn Doolittle investigated the high rate of ‘unfounded’ cases in Canada and published a report in the Globe and Mail. She discovered that police forces across Canada had incredibly high unfounded rates in sexual assault cases and that they were disproportionately higher than any other crime. Currently, the number of unfounded cases is lower, but that may be because of a new categorization system in place. There are also committees of community members in certain communities set up to review the unfounded files. However, there is still a lot of work to be done in this area.

If a charge is laid, you will be contacted by VWAP. VWAP is meant to be a liaison between you and the court process, including the Crown and police. VWAP employees will keep you apprised of developments in your case, and can provide you with non-legal advice about the court system. Anything you share with VWAP may be disclosed to the Crown, police and defence lawyer, as your relationship with them is not confidential.

  1. Bail hearing

If a charge is laid, bail conditions will be determined or the Accused will be denied bail and the accused will be detained for the period of time leading up to the trial.

If the accused is released on bail, there will likely be a court order that the accused not communicate or associate with you and not attend your residence, employment or educational institution. If the accused does not follow their bail conditions, you should immediately call the police so that the police can charge the accused for breach of bail conditions.

After bail is established, the accused is given some time to get a lawyer, financial assistance through Legal Aid Ontario, and review the ‘disclosure’ provided by the Crown. Disclosure is evidence collected by the police during its investigation, and it will include your videotaped statement from the police interview. You are not permitted to see the other evidence collected by the police, to prevent your own evidence from being influenced by it.

  1. Determination of whether the accused pleads ‘guilty’ or ‘not guilty’

It is not common for an accused to plead guilty to the charge of sexual assault. However, sometimes the Crown and defence lawyer negotiate a ‘plea agreement’, which can result in an exchange of the accused’s admission of guilt for a lower sentence. The Crown will likely consult you about this and take into consideration your wants and desires. However, the Crown can decide to make a plea agreement against your wishes.

  1. You testify at trial

You will be required to testify at the trial of the accused. The trial will either be heard before a judge alone or a judge and a jury. You can expect to wait potentially a year or more from the time your statement was given to the day you testify. The Crown will prepare you to testify but is restricted from going into too much detail due to the risk of new disclosures. It may take several days for the Crown and defence lawyer to complete their questions of you during your testimony at trial. The defence lawyer’s cross-examination will involve challenging your credibility and your reliability.

You will be recounting your traumatic story, which can be very difficult and may result in reliving the same feelings you felt when you were sexually assaulted. This is one reason that having mental health support during this process is critical to your well-being.

The defence lawyer will try to raise a ‘reasonable doubt’ in the mind of the judge or jury. To do that, the defence lawyer may suggest a narrative about you in an attempt to put your credibility and reliability into question. For example, they may suggest you have a ‘motive to fabricate.’ They may try to identify inconsistencies in your evidence, even in the peripheral detail. They may also rely on the fact that you did not behave in accordance with the behaviour expected of the ‘perfect victim’, as described above. These tactics may or may not harm your case, and they may be difficult to hear.

  1. A decision is made

After testifying at trial, you may or may not be allowed to watch the remainder of the trial, including closing arguments by the Crown and defence lawyer. When the Crown discusses that with you, you should indicate your wishes in that regard. Following the end of the trial, a judge will either make a decision regarding the accused’s guilt immediately or will delay providing a decision to a future date. The decision will either be communicated orally or in writing. Regardless, you will be advised of the decision usually by the Crown or a VWAP employee.

If there is a conviction (i.e. the judge or jury renders the accused ‘guilty’), a sentencing hearing will usually be held on a different date. At the sentencing hearing, you will be allowed to submit a victim impact statement and you will have the option to read it aloud. A VWAP employee or a lawyer you contact through ILA can help you with your victim impact statement. The decision on sentencing could be made on the same day as the sentencing hearing or delayed to a future date.

  1. The Crown or defence lawyer may appeal the decision

Decisions regarding conviction and regarding sentencing can both be challenged by the Crown or the defence lawyer through an appeal process. As a complainant, you do not have your own personal right of appeal and therefore do not have a say as to whether a decision should be appealed. You will be notified if there is an appeal, however, you will not be required to testify in the appeal process.

One possible outcome of an appeal is to have the matter sent back for a new trial. In that case, you may have to testify anew.

Regardless of the outcome at trial and sentencing, you should feel proud of yourself! Disclosing a sexual assault and participating in the criminal justice process is no easy feat. The outcomes are out of your control, but doing what is right, for the right reasons in the face of adversity is something of which to be proud.

How Can A Trauma-Informed Lawyer Specialized in Sexual Assault Help You During the Criminal Justice Process?

If you report a crime to the police, your involvement in the criminal justice process from that point onward is as a witness to the crime. The Crown and the accused person are the parties to the case. This means that any lawyer you retain for advice during this process cannot represent you in court. The only time the complainant of a sexual assault is represented in court during the criminal proceeding is when the defence lawyer makes an application under either s.276 or s.278 of the Criminal Code.

This does not stop you from obtaining advice from a lawyer. In fact, you will greatly benefit from obtaining legal advice from a trauma-informed lawyer specializing in sexual assault.

Confidentiality

You do not have a confidential relationship with the police, the Crown or a VWAP employee. However, your relationship with a lawyer is confidential. This means you can share as much information as you want with your lawyer and neither you nor the lawyer can be compelled to talk about what you discussed. The following are the ways in which you would benefit from the legal advice of a lawyer if you choose to disclose a sexual assault to the police.

If you speak with a lawyer before being interviewed by the police, you can avoid disclosing private information that is not relevant to the crime. Many people tell the police everything, including a lot of unnecessary details about their personal lives. However, the police are not required to keep your private information confidential.

Preparation

Police interview

A lawyer can help you understand the kind of evidence the police will want to collect from you. If you obtain legal advice, you will be well-prepared to give that information on the day of your interview. It is possible that the police officer interviewing you does not understand how trauma affects memory. A trauma-informed lawyer can prepare you to give your information in a way that is understandable to someone who does not understand how trauma impacts the brain and memories.

Trial

Having legal advice from a lawyer representing your best interests is particularly useful for preparing to testify at trial. A lawyer can help you by identifying how the defence lawyer will likely try to attack your credibility and reliability. In some ways, it may feel like you are being put on trial, despite being the victim of a crime (to read more on this, see ‘Putting Trials on Trial’ by Elaine Craig).

The Crown has limitations on how much preparation they can provide. This is in part due to the Crown’s duty to disclose all relevant information you provide to the defence lawyer. If you share new information or add detail that did not come up in your original statement to the police when the Crown is preparing you for trial, they now have to disclose that new information. This can cause a delay in the trial or a reassignment of the Crown dealing with your case. This is why having a lawyer who keeps all your information confidential and can prepare you in more depth is so important.

The lawyer will not speak on your behalf at trial. However, the lawyer can hear all your concerns and questions in a confidential setting and help you to understand what evidence is important to the case.

When being cross-examined by the defence lawyer, you might be asked why you did not exhibit certain behaviours, such as those expected of a ‘perfect victim.’ This often causes feelings of shame, anger, frustration, and confusion. Being able to prepare for these kinds of questions can help you respond in a calm manner, therefore allowing you to provide the most accurate answer for the judge and/or jury to consider. This may also help prevent the psychological harm that can occur as a result of cross-examination.

A trauma-informed lawyer understands that recounting the details of a sexual assault can cause re-traumatization. You may relive or remember the pain related to the sexual assault in varying degrees of intensity. Having mental health support during and after the criminal justice process is incredibly important to healing from the initial trauma and the occurrences of retraumatization. A trauma-informed lawyer will understand how re-traumatization can occur and will take steps to minimize harm.

Can We Help You?

If you think you have a human rights claim, a complaint of maltreatment in sport, or if you are looking for confidential legal support through the criminal justice system as a complainant of sexual violence, Bellehumeur law can help. Please call us for a free consultation meeting or phone call. 

Other Resources

We have compiled a reliable list of resources that can help support you through your journey.

This program provides vouchers for up to four hours of free legal advice by approved lawyers. Karen Bellehumeur is an approved lawyer for this program.

Note: You must be living in Ontario and at least 16 years of age to qualify. Find more information on the ILA Program, above.

The ILA can be reached at 1-855-226-3904.

Click here for more information. 

The Assaulted Women’s Helpline offers a 24-hour telephone and TTY crisis line to all woman who have experienced abuse.

www.awhl.org

Are you a victim of abuse, harassment or discrimination in a sport environment? Have you witnessed such an incident?

The Canadian Sport Helpline is a free, anonymous, confidential and independent service in both official languages. You can reach us by phone, text or email. It is open 7 days a week between 8am and 8pm (ET).

Call or text: 1-888-83SPORT (77678)

Email: info@abuse-free-sport.ca

Web: www.abuse-free-sport.ca

Leap21 was created to support a 21st century growing awareness of sexual violence. The intended audience is anyone involved with the child welfare sector in Ontario.

www.leap21.ca

The Ontario Coalition of Rape Crisis Centres (OCRCC) is a network of sexual assault centres across Ontario. They represent 29 English-language sexual assault centres.

sexualassaultsupport.ca

The mandate of the Sexual Assault/Domestic Violence Treatment Centres is to address the health, psycho-social, and forensic needs of victims/survivors of sexual violence and/or domestic violence in a prompt, professional, and compassionate manner.

www.sadvtreatmentcentres.ca

LEAP21 4me was developed to support survivors of sexual assault in Ontario to document the assault in their own words and their own time. If you have been assaulted or harassed, you can document your experience with 4me. The step by step process allows you to capture details so that you have your own record of what happened. The information is saved and encrypted on a cloud. You are the only person with access so it’s important to store your password in a safe place. You also have an option to save the file to your computer.

Download the app in the Google Store here.

The Canadian Resource Centre for Victims of Crime (CRCVC) has provided support, research and education to survivors of serious crime and stakeholders in Canada.

crcvc.ca

ShelterSafe.ca is an online resource to help women and their children seeking safety from violence and abuse.

www.sheltersafe.ca

Kids Help Phone is Canada’s only national 24-hour, bilingual and anonymous phone counselling, web counselling and referral service for children and youth.

kidshelpphone.ca

We are here to advocate for you and help you move forward.

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