Complainants in sexual assault cases have a statutory right to independent legal counsel.
This right stemmed from proposals under Bill C-51 to the Criminal Code. In Ontario, there has been a policy decision to fund these cases and an agreement between the Ministry of the Attorney General and Legal Aid Ontario.
In his video presentation, Ian Carter, a defence lawyer, states that there is a new and expanded role for counsel in sexual assault cases. In all likelihood, defence lawyers are best suited to represent complainants. Defence lawyers should also be aware that under the legislation, complainants must be notified of the ability to be represented by a lawyer.
Whether you intend to represent a complainant, or not, you need to know your substantive, procedural, and ethical obligations, under this legislation.
Also in this video, Meaghan Cunningham, an assistant crown attorney, reviews an important part of this process: "how to get paid".
Meaghan reviews the procedure in detail. A complainant must be notified of the right and choose to exercise it. The Crown must file an application in the OCJ (Criminal Rules of the OCJ 1.1 and 4.1) or SCJ (inherent jurisdiction) to obtain a court order appointing counsel. In addition, LAO requires the Crown to fill out a form, and send it to them with the court order.
It sounds like the application procedure is somewhat ad hoc around the province.
Once the order to appoint legal counsel has been obtained, what materials does the complainant actually get?
Ian states that what is new is the ability to receive materials for section 276 applications (evidence of complainant’s sexual activity) as they deal with the admissibility of evidence at trial. Historically, the complainant had no say or role in those kinds of decisions. Based on caselaw, it appears that complainant’s counsel gets a copy of the application record but primarily at the second stage of the hearing (past the information/belief affidavit stage).
Ian cautions you to remember that you are counsel for the complainant and not "on the Crown’s team". If the complainant shares information with you that is helpful to the Crown, make sure you have the complainant’s consent to share that information.
Does the complainant’s counsel have the right to cross-examine the accused?
The short answer is "yes".
Keep in mind that the cross-examination should not overlap with the Crown’s cross-exam. It would be helpful to discuss this with the Crown (with your client’s consent). And, consider whether another cross exam adds anything to the case. Consider whether questions regarding the "other alleged sexual activity" would be helpful since the Crown may not have explored this with the complainant.
Finally, what happens if the Crown and complainant’s counsel disagree? Ian and Meaghen state that it is unclear, and needs to be litigated! Alternatively, there may be some creative ways to address these problems considering the complainant’s position will not always be aligned with the Crown’s.
At CPDonline we serve your learning needs. Is there a topic you would like to learn more about? Please contact me and if we have your topic in our library, I will send you a direct link. If not, we’ll add it to our training wishlist.
*see individual programs and jurisidictional allowances for accredited hours/requirements for Canadian law societies.