The criminal system in Canada recognizes that a person who has been sexually assaulted is a victim of a crime. Your first step is to report the crime to the police and provide them with details about what happened. It is up to the police to investigate and gather evidence of the crime.
After concluding the investigation, the police will decide if they have enough evidence to recommend criminal charges against the accused assailant. If so, then the police recommend charges and provide their investigation file to the Crown Prosecutor to review.
Crown Prosecutors are lawyers employed by the Ministry of the Attorney General. As such, they are public servants and represent the interest of the general public in criminal proceedings. They do not represent or take instructions from the police or the victims of crime. If you are the victim of a sexual assault, you likely will have little communication with the Crown Prosecutor.
You may choose to retain your own lawyer to represent your interests but because your primary role in the criminal proceeding is that you are a witness to the crime, your lawyer’s role in the criminal proceedings is very limited. The accused assailant will also typically hire their own lawyer to defend them in the criminal proceeding.
When the Crown Prosecutor receives a police file that recommends criminal charges, it is their job to review all of the evidence in the file and decide whether the accused assailant should be charged with a crime or not. Their decision is usually based on two factors:
1. Based on the evidence, is there a substantial likelihood that the accused assailant will be convicted of the crime? and;
2. Is it in the public interest to proceed with the criminal charges?
If the Crown Prosecutor charges the accused assailant with a crime, then they will start preparing for a criminal trial. They may also speak with the accused assailant or their lawyer to try to strike a plea deal. Typically, a plea deal means that the accused assailant pleads guilty to a lesser crime or receives a lesser criminal sentence. If no plea deal is made, the case could be dropped by the Prosecutor or it could proceed to a criminal trial.
At trial, after hearing all of the evidence, the judge or jury will decide if they think the accused is guilty of the crime or not. Because an accused in Canada assumed to be innocent of a crime unless proven guilty, it is up to the Crown Prosecutor to convince the judge and jury that the accused assailant committed the sexual assault against you.
The criminal standard for proving the guilt of an accused assailant is very high: the judge or jury must be convinced of the assailant’s guilt “beyond a reasonable doubt”. This means that they must be almost 100% sure that the accused assailant committed the sexual assault.
One important thing to keep in mind is that your primary role in the criminal proceedings is as a witness to the crime. Once you report the crime and provide your statement, you have very little say over what happens in the proceedings. You do not get to decide if the criminal charges are
recommended or made, whether a plea deal is offered or accepted, or whether the case proceeds to trial.
One of the biggest differences between criminal and civil court is the difference in the standard of proof required to prove your case. In criminal court, the judge or jury must be convinced “beyond a reasonable doubt” that the accused is guilty of the sexual assault.
This is a very high standard requiring nearly 100% certainty. In civil court, the judge or jury must believe on a “balance of probabilities” that the accused committed the sexual assault.
To put it another way, the civil judge or jury only need to find that it is “more likely than not” (ie. they need to be 51% or more sure) that the assailant committed the sexual assault. This means that sexual assault cases that fail to be proven in criminal court can and often are proven in civil court.
Civil and criminal proceedings are not mutually exclusive. You may choose to pursue one, the other, or both. You can also choose to commence those proceedings at the same time or one after another. There are many considerations in deciding how to proceed and when.
