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Child Sexual Abuse Joint Investigations – March 4, 2009 Police/Social Workers

Child Sexual Abuse Joint Investigations – March 4, 2009 Police/Social Workers. To be covered: Legislation Evidentiary Topics

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Child Sexual Abuse Joint Investigations – March 4, 2009 Police/Social Workers

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  1. Child Sexual AbuseJoint Investigations – March 4, 2009Police/Social Workers • To be covered: • Legislation • Evidentiary Topics N.B. Because of space limitations, the wording of sections of the legislation herein, may have been altered. Therefore, please refer to the actual legislation for the specific wording of each section. David P. O’Brien, Q.C. Senior Crown Attorney Prince Edward Island

  2. Child Sexual AbuseJoint Investigations – March 4, 2009Police/Social Workers - Legislation Criminal Code of Canada Canada Evidence Act Victims of Family Violence Act Child Protection Act Age of Majority Act Youth Criminal Justice Act Common Law Charter of Rights and Freedoms

  3. Access to Slides • Copies of these slides can be found at: • http://www.makingadifferencecanada.ca/ User Name: mad Password: members • The "Making a Difference Canada" project is a joint effort with Making a Difference USA, supported with generous funding by the Donner Canadian Foundation in Canada, and by the William H. Donner Foundation in the USA. • The purpose of the "Making a Difference" project is to  challenge the justice system in both the U.S. and Canada to more effectively prosecute sexual offenders.

  4. Caveat • If opinions are expressed today, they are personal opinions and probably do not represent the views of the Department

  5. Role of the Crown • 1955 Rand J. in Boucher v. The Queen • “It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly.

  6. R. v. Boucher Con’t. • The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of dignity, the seriousness and the justness of judicial proceedings.

  7. CCJS Family Violence In Canada A Statistical profileData from 122 police services representing 71% of the Canadian population in 2005

  8. Provincial Child Sexual Abuse Committee

  9. What is A sexual Assault? • The offence of sexual assault is set out in terms of penalty in the Criminal Code but there is no definition of what constitutes a sexual assault. • R. v. Chase,[1987] 2 S.C.R. 293 – one of the first cases that attempted to give definition to the term

  10. What Sexual Assault is – Objective Test • 11     Applying these principles and the authorities cited, I would make the following observations. Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer"

  11. Factors to Look For • …The part of the body touched, • the nature of the contact, • the situation in which it occurred, • the words and gestures accompanying the act, • and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant

  12. Sexual Motivation only a Factor • The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.

  13. R. v. V.(K.B.)K.B., [1993] 2 S.C.R. 857 • The accused was charged with sexually assaulting his three-year-old son. In a statement to the police, he explained that he grabbed his son's genitals in order to deter him from grabbing the genital region of adults and to show him how much it hurts. The accused was convicted. The trial judge concluded that the absence of evidence of sexual gratification on the part of the accused was irrelevant in this case, given the otherindicia which lead to the conclusion that the assault was in fact a sexual assault.

  14. Violation of Sexual Integrity • Among other things, the appellant, on three occasions, violently clutched the little boy's scrotum and there was evidence of bruising and severe pain. In my view, it was clearly open to the trial judge to conclude from all the circumstances that the assault was one of a sexual nature and that the assault was such thatthe sexual integrity of the appellant's son was violated.

  15. At What Age is a Child a Child? Age of Majority Act: s.1. Every person attains the age of majority and ceases to be a minor on attaining the age of eighteen years. R.S.P.E.I. 1974, Cap. A-3, s.1.

  16. Proving AGE of Child - Criminal Code • 658(1) In any proceedings to which this Act applies, the testimony of a person as to the date of his or her birth is admissible as evidence of that date. • 658(2) In any proceedings to which this Act applies, the testimony of a parent as to the age of a person of whom he or she is a parent is admissible as evidence of the age of that person. • 658(3) In any proceedings to which this Act applies, (a) a birth or baptismal certificate or a copy of such a certificate purporting to be certified under the hand of the person in whose custody the certificate is held is evidence of the age of that person; and • (b) an entry or record of an incorporated society or its officers who have had the control or care of a child or young person at or about the time the child or young person was brought to Canada is evidence of the age of the child or young person if the entry or record was made before the time when the offence is alleged to have been committed.

  17. Proving Age If All Else Fails! • 658(4) In the absence of any certificate, copy, entry or record mentioned in subsection (3), or in corroboration of any such certificate, copy, entry or record, a jury, judge, justice or provincial court judge, as the case may be,may receive and act on any other information relating to age that they consider reliable. • 658(5) In the absence of other evidence, or by way of corroboration of other evidence, a jury, judge, justice or provincial court judge, as the case may be, may infer the age of a child or young person from his or her appearance.

  18. Child under Child Protection Act (h) “child” means (1) a person under the age of 16 years; or (ii) a person between the ages of 16 and 18 years where the person, due to developmental, mental or physical incapacity, is or appears to be unable to protect himself or herself;

  19. Child Protection Act – Duty to Report 22. (1) Notwithstanding any other Act, every person who has knowledge, or has reasonable grounds to suspect that a child is in need of protection shall a)without delay, report or cause to be reported the circumstances to the Director, or to a peace officer who shall report the information to the Director; and (b) provide to the Director such additional information as is known or available to the person.

  20. Child is in Need of Protection When • 3. A child is in need of protection where (c) the child has been sexually abused by a parent or by another person where the parent knew or ought to have known of the possibility of sexual abuse of the child and the parent failed to protect the child; (d) the child has been harmed as a result of being sexually exploited for the purposes of prostitution and the parent has failed or been unable to protect the child;

  21. Police Duty to Report - Form • Police have a Form developed through the VFVA – Steering Committee – Instructed to send it to Child & Family Services in every case of Family Violence when children are part of the relationship.

  22. Victims of Family Violence ActDefinition of Child • s.1(a) “child” means a child who ordinarily or periodically resides with the victim, is under the age of eighteen years and unmarried, whether or not the child is a child of the victim and the respondent or of either of them, and includes a foster child or a child in actual care and custody of the victim;

  23. VFVA - Child may also be a Victim • (q) “victim” means • (i) a person who has resided with or who is residing with the respondent in a family relationship, or • (ii) a person who, with the respondent, is a parent of one or more children, regardless of marital status or whether the victim and respondent have lived together at any time, who has been subjected to family violence by the respondent;

  24. Emergency Protection Order Must be a finding that: • Family violence has occurred • The seriousness or urgency of the circumstances merits the making of the Order

  25. Sexual Violence Included in VFVA 2. (1) “Family violence” in relation to a person, is violence against that person by any other person with whom that person is, or has been, in a family relationship. (2) In subsection (1), violence includes (a) any assault of the victim; (d) forced confinement of the victim; (e) actions or threats of sexual abuse, physical abuse or emotional abuse of the victim;

  26. Conditions in an EPO – max 90 days unless extended by a judge • (d) a provision restraining the respondent from directly or indirectly communicating with the victim or other specified person; • (e) a provision requiring the respondent to stay away from any place identified specifically or generally in the order; • (f) a provision awarding temporary care and custody or day-to-day care of a child to the victim or some other person;

  27. Canada Evidence Act Who can Testify and How

  28. Canada Evidence Act • S.4(1) The husband or wife of an accused is a competent & compellable witness for the Crown when a child is the victim of sexual offences. (spousal privilege does not apply)

  29. Canada Evidence Act – Evidence of Person with a Physical Disability • 6(1) If a witness has difficulty communicating by reason of a physical disability, the court may order that the witness be permitted to give evidence by any means that enables the evidence to be intelligible. • 6(3)Court can conduct inquiry to determine if means to be used is necessary & reliable.

  30. Canada Evidence Act – Evidence of Person with a Mental Disability • 6(2) If a witness with a mental disability is determined under section 16 to have the capacity to give evidenceandhas difficulty communicating by reason of a disability, the court may order that the witness be permitted to give evidence by any means that enables the evidence to be intelligible. (s.6(3) applies)

  31. Canada Evidence Act – Capacity to Testify - 14 Years of Age or Older • If witness is 14 years or older and their mental capacity is challenged (onus on person challenging to satisfy court there is issue of capacity to testifyunder oath or affirmation) Court shall conduct an inquiry to determine: • a) if witness understands oath/affirmation • b) whether witness is able to communicate the evidence

  32. Result of Inquiry 16(1) • S.!6(3) If person understands nature of oath/affirmation andable to communicate the evidence then testifies under oath/affirmation. • If doesn’t understand but able to communicate – testify on promise to tell the truth • If doesn’t understand and can’t communicate can’t testify.

  33. Canada Evidence Act – Capacity to Testify – Under 14 Years of Age –16.1 • 16.1(1) presumed to have capacity to testify • 16.1(2) shall not take an oath or affirmation • 16.1(3) SHALL BE RECEIVED IF ABLE TO UNDERSTAND AND RESPOND TO QUESTIONS • 16.1(3) required to promise to tell the truth • 16.1(8) Evidence shall have the same effect as if taken under oath

  34. CEA –16(1) Challenge to Mental Capacity- if witness over14 • 16(1)(5) if court is satisfied there is issue of capacity to understand & respond to questions it shall conduct an inquiry but 16.1(7) - can’t ask questions concerning the nature of the promise to tell the truth. • Court must determine • 1. Whether the person understands the nature of the oath/affirmation • 2. Whether the person is able to communicate the evidence

  35. YCJA Evidence of Child/YP s.151 The evidence of a child or a young person may be taken in proceedings under this Act only after the youth justice court judge or the justice in the proceedings has • (a) if the witness is a child(under 12), instructed the child as to the duty to speak the truth and the consequences of failing to do so; and • (b) if the witness is a young person (12-17) and the judge or justice considers it necessary, instructed the young person as to the duty to speak the truth and the consequences of failing to do so.

  36. The Criminal Code • My Best Advice Read it!!!! • Break down the provision to see what you need to prove or what evidence you need to gather.

  37. Criminal Code Provisions: Current Not HistoricCriminal Code 101 • Police investigate and gather evidence – Crown can’t direct their efforts R. v. Regan,[2002] 1 SCR297 … while the police tasks of investigation and charge-laying must remain distinct and independent from the Crown role of prosecution, I do not think it is the role of this Court to make a pronouncement on the details of the practice of how that separation must be maintained.

  38. Police Lay the Information A prosecution is commenced by laying an information. Police lay the information – Crown cannot interfere – Crown Attorneys do not have the authority to lay an information, (other than as a private citizen), or to direct the police to lay an information. • A Police Officer must swear on oath that he/she has reasonable grounds to believe an offence has occurred.

  39. Crown Consultation • The policy in our province is that the police shall consult with the Crown prior to laying an information involving a child sexual assault.

  40. Limitation Periods Criminal Code • Indictable no limitation period but need to charge based on the legislative provision as it existed at the time • Summary conviction6 months but s. 786(2) (2) No proceedings shall be instituted more than six months after the time when the subject-matter of the proceedings arose, unless the prosecutor and the defendant so agree.

  41. Charter of Rights and Freedoms • If lengthy delay affects the fairness of the trial arguments for a stay of proceedings can be made pursuant to s.7 • or more likely, s.11(b) the right to be tried within a reasonable time R.v. Askov, [1990] 2 S.C.R. 1199 systemic or institutional delays - Ontario

  42. Crown Involvement • If a charge is laid, the Crown determines if the charge meets their test: 1.) There is a reasonable prospect of a conviction and 2.) The prosecution is in the public interest • If police have not released the accused - show cause hearing?

  43. Releasing the Accused • To Release-or- To show Cause That is the Question! Hindsight is 20/20

  44. Release versus Custody • 1.)Release on Undertaking w conditions – Peace officer or Justice of the Peace ( JP -REVERSE ONUS and broader conditions can be imposed) • 2.)Hold in Custody – 3 grounds s.515(10) A.) Ensure attendance B.)Protection or safety of the public includes victim & witness substantial likelihood commit an offence /interfere with the administration of justice if released C.)Detention is necessary to maintain confidence in the justice system

  45. If Remand- Seek no contact Order • 515(12) A justice who orders that an accused be detained in custody under this section may include in the order a direction that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, except in accordance with such conditions specified in the order as the justice considers necessary.

  46. Crown Test Not Met • Withdraw (judge can make an inquiry • Stay (no inquiry must return to court in 6 summary conviction or 12 months indictable), or • seek an adjournment for further investigation

  47. Consider s.810 Recognizance – Civil Standard of Proof If police believe on reasonable grounds that another person will cause personal injury to a person or the person’s spouse or CL partner or child or will damage their property can seek an 810 Recognizance. – Not a criminal charge - No finding of guilt I.e. no record. N.B.If accused is found not guilty, i.e., not satisfied of guilt beyond a reasonable doubt, the court may be able to bind the accused over to keep the peace pursuant to its common law powers - PREVENTATIVE

  48. Consider s.810.1 • 810.1(1) Any person who fears on reasonable grounds that another person will commit an offence under s. 151, 152, 155 or 159, ss. 160(2) or (3), s. 163.1, 170, 171 or 172.1, ss. 173(2) or s. 271, 272 or 273, in respect of one or more persons who are under the age of 16 years, may lay an information before a provincial court judge, whether or not the person or persons in respect of whom it is feared that the offence will be committed are named.

  49. Alternative Measures • AG Policy – Spousal and Sexual Abuse cases only to be referred in exceptional circumstances. • Prior to referral – Victim Services should be contacted, Victim’s wishes and needs to be considered, charges should be laid • If referred, case is sent to Probation Services, a contract is entered into, if no substantial completion matter can be brought to or back to court

  50. Summary v. Indictable Offence • Crown determines if proceeding by summary conviction or by indictment • Accused determines mode of trial if indictable 3 options: • Provincial Court Judge, • Supreme Court J with a jury or • Supreme Court J without a jury • If Supreme Court - Crown or Defence can request a Preliminary Inquiry

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