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Why adults? The scope of victimization covered includes those over the age of consent to sexual activity, which is 16 years of age with some close-in-age exceptions section Moreover, the Working Group limited its examination to sexual assaults committed by adults who were 18 years of age or over at the time of the alleged offencethereby excluding the application of the Youth Criminal Justice Act. Membership in the Working Group includes Crown prosecutors, police, criminal law policy lawyers and analysts, the Canadian Centre for Justice Statistics Footnote 1 and the Directors of Victim Services from across Canada.

Footnote 2 While the criminal justice system generally encompasses the following four independent institutions that apply the criminal law - notably the police, prosecutions, the criminal courts, and corrections - this report focusses principally on police, victim services and prosecution services. Footnote 3 In compiling the report, the Working Group has consulted with police, Crown and government-based victim services working in this area. The report is complemented by research commissioned on access to justice for Indigenous victims of adult sexual assault, as well as the neurobiology of trauma and its relevance to the investigation and prosecution of adult sexual assault cases.

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Footnote 4. Meaning of access to justice: Access to justice is a principle that flows from respect for the rule of law and, as such, is a fundamental value of the Canadian criminal justice system.

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For adult victims of sexual assault in particular, access to justice means that: victims feel comfortable reporting crimes to police; police investigations are conducted thoroughly in an objective and timely manner; charges are laid where they meet the legal criteria; and, prosecutions are conducted fairly, with supports provided to victims. While a sexual assault victim may face many challenges in the aftermath of a sexual assault, this report focusses solely on criminal justice system barriers that a victim may face following a sexual assault, which impede access to justice.

While many of the challenges identified in this report relate to broad societal issues that cannot be addressed solely through the criminal justice system, the Working Group discussed the role the criminal justice system could play as part of an overarching effort to address these underlying concerns. The Working Group discussed a variety of mitigation strategies to address the challenges facing adult victims of sexual assault in accessing the criminal justice system. The recommendations that ensued are suggestions that are interspersed throughout the report to accompany the challenges to which they respond.

It should be noted that some of the non-legislative measures mentioned in the recommendations may already be in place, in whole or in part, within certain jurisdictions. These measures were identified by the Working Group in its efforts to gather promising practices and have been shared with all of the jurisdictions, which may decide, if they have not already done so, to implement measures inspired by them. The Working Group also recommends consideration be given to supporting organizations such as the National Judicial Institute to provide education for the judiciary on the law of sexual assault and the role that discriminatory myths and stereotypes can play in the misapplication of the law.

Subsection 3. The resulting statutory framework reflects an ongoing discourse between Parliament and the judiciary, involving efforts to balance the often competing rights of victims and the accused. Footnote 6 Chapter 3 provides more information on the existing legal framework governing sexual assault against adults in Canada, proposed reforms, and some persisting challenges.

Footnote 7. Like many other jurisdictions, Canada faces challenges in terms of reporting, investigating and prosecuting sexual assault cases. Footnote 12 Recent data on sexual assault in Canada and some of the questions this data raises are explored in Chapter 4, which also addresses the various challenges facing victims of sexual assault in their encounters with the criminal justice system. This report also refers to victims as female and perpetrators as male, in recognition of the gendered nature of the crime. This is not meant to imply that males or persons with other gender identities are not also victims of sexual assault.

In response to the unique challenges in investigating and prosecuting adult sexual assault cases, a of jurisdictions, both domestic and international, have explored and implemented some innovative responses. The Working Group examined some key emerging and promising practices from Canada and other common law jurisdictions as set out in Chapter 5. The Working Group proposed some recommendations that result from its review of relevant practice, policy and legislation.

These recommendations are suggestions aimed at improving access to justice for adult victims in sexual assault matters. Several recommendations involve amendments to the Criminal Code and have therefore been submitted to the federal government for consideration.

However, most of the recommendations relate to the administration of criminal justice, which falls under the jurisdiction of the provincial and territorial governments, although projects funded by the federal government in these areas may also be relevant. These recommendations have been formulated by the Working Group, in accordance with its mandate, as part of an effort to identify promising practices in this field. They have already been shared with the governments, and those who do not already have similar promising practices in place may choose to implement such measures.

The recommendations are listed in Chapter 1 and appear throughout the report in text boxes. This chapter provides an overview of the criminal law that applies to sexual assault against adults.

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Testifying in sexual assault trials can be extremely difficult, even traumatizing, for victims. As a result, the criminal justice system strives to strike a balance between protecting the Charter rights of the accused Footnote 13 and ensuring that victims are treated with compassion, respect and dignity, including respecting their Charter rights.

Footnote Inact and gender-specific sexual offences Footnote 16 were replaced with the three gender neutral sexual assault offences we have today. Footnote 17 These offences capture a much broader range of conduct, i. Furthermore, certain common law rules that applied only in the context of sexual assault Footnote 18 were abrogated. For example, the Criminal Code now specifies that:. Footnote 23 The reforms also limited the availability of the defence of honest but mistaken belief in consent in a of ways, including to require the accused to show that he took reasonable steps to ascertain consent in order to advance the defence.

The amended rape shield provisions also include a special procedure through which such evidence may be adduced for legitimate purposes. The reforms would:. There are three levels of sexual assault in the Criminal Code : Footnote 36 sexual assault section ; Footnote 37 sexual assault with a weapon, threats to a third party or causing bodily harm section ; Footnote 38 and, aggravated sexual assault section Footnote 39 Similar to the assault offences sections tothese offences increase in severity based upon the level of violence involved. In making this determination, courts may consider the following factors:.

To establish the act element of the offence of sexual assault, the evidence must show:. Footnote 41 In making this determination, the court must consider both the definition of consent section Footnote 42 Where it is found that the victim did not in fact consent, the defence of honest but mistaken belief in consent may be considered.

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Relevant case law has also established that the definition of consent requires that consent be:. The Criminal Code lists circumstances in which consent is not obtained in law or the law vitiates any consent provided. Specifically, for the purposes of the sexual assault offences, no consent is obtained in law where:. Furthermore, for the purposes of both the assault and sexual assault offences, consent is not obtained where the victim submits or does not resist by reason of:. Where it has been established that the victim did not in fact consent, the accused may assert that he nonetheless honestly believed that the victim was consenting, i.

To raise the defence, the accused must be able to point to evidence that shows that he believed the victim affirmatively communicated, by words or conduct, her agreement to engage in the sexual activity. For example, a belief in consent that is based on one of the circumstances in which no consent is obtained in law e. Their objective is to remove myths and stereotypes about sexual assault victims from the trial process. Two distinct evidentiary rules apply:. Specifically, a judge must consider:. Sections The current notice period for rape shield application hearings is 7 days.

However, should Bill C come into force, victims will have the right to be represented by counsel for these hearings and may need more time to realize this right. A non-exhaustive list of examples of such records is provided, which includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social service records and personal journals.

Footnote 53 However, records made by persons responsible for the investigation and prosecution of the offence at issue are specifically excluded. In so doing, the judge must take into a of factors:. Participating in criminal justice proceedings can be extremely difficult and is often traumatic for victims of sexual offences. Sexual assault victims often fear re-traumatization through the criminal justice process, particularly where the victim is required to testify at both a preliminary inquiry and a trial the accused may request a preliminary inquiry, if charged with an indictable offence unless the indictable offence is listed in s of the Criminal Code, in which case the provincial court or, in Nunavut, the Nunavut Court of Justice, has absolute jurisdiction.

To address this concern, the Criminal Code contains a of provisions that can make it easier for victims to provide their testimony. For example:. The Criminal Code amendments complement the CVBR, which establishes certain rights for victims of crime in four areas, i. For more information see Annex 2.

Accessing these testimonial aids remains a challenge, particularly in remote and fly-in communities. Many courthouses do not have adequate closed-circuit facilities. Further, not all Crown prosecutors may have been trained on the recent amendments. Victims are not always aware of their rights under the CVBR. Sincefurther amendments regarding testimonial aids have been suggested, in particular to address inconsistencies between the official language versions of certain provisions, the omission of a reference to a relatively new offence in another section Courts have been allowing the use of support dogs as a testimonial aid for vulnerable witnesses who testify in criminal proceedings, even though there is no specific Criminal Code authorizing provision.

The Criminal Code requires courts to consider as an aggravating factor on sentencing the fact that the crimes were motivated by bias, prejudice or hate based on factors such as race, national or ethnic origin, mental or physical disability, sexual orientation or sex paragraph Similarly, offences that involved abuse of a spouse, a common-law partner, or a position of trust or authority are also to be treated more seriously at sentencing paragraphs Victims of sexual offences can also choose to present a victim impact statement at the time of sentencing to describe the impact the crime has had on them section Where a community is impacted by a sexual offence, a community impact statement may also be submitted section Restitution may also be available to victims for readily ascertainable losses directly related to the crime section Footnote 60 The Crown may also consider whether it is appropriate to seek a long term offender LTO Footnote 61 or a dangerous offender DO deation on an offender.

Parliament exhibited a marked, and justifiably so, distrust of the ability of the courts to promote and achieve a non-discriminatory application of the law in this area. Despite the robust legislative provisions described above, misapplications of the law persist.

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Footnote 64 Although errors are often addressed on appeal, lengthy appeal processes can ificantly negatively impact victims.

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