Type of document: Prosecution Directive
Effective date: November 14, 2017

Offences against children include crimes of abandonment, abduction, neglect, physical abuse, sexual abuse and Internet child exploitation. These offences have devastating effects on the physical and psychological well-being of victims, their families and the community.

The Prosecutor must ensure that efforts are made, at all stages of the criminal proceedings, to provide the victim and/or where appropriate their parents or legal guardians, with whatever information or assistance is required to ensure full and fair participation in the criminal justice system. This includes the availability of the following:

  • specialized victim’s services facilitated by the Victim/Witness Assistance Program (V/WAP) or other similar victims’ support services
  • interpreters to assist the victim in communicating
  • testimonial aids to assist the victim in providing evidence
  • appointment of counsel to cross-examine the victim where the accused is self-represented
  • access to independent legal representation for victims or witnesses on applications to access their private records under the Criminal Code

Reference should be made to the following directives: Internet Child Exploitation, Victims, Publication Bans and Sealing Orders, DNA Data Bank Orders, Weapons Prohibitions and Forfeiture, High-Risk Offender National Flagging System, Judicial Interim Release (Bail), Testimonial Aids and Accessibility.

Judicial interim release (bail)

In offences against children, the Prosecutor must take a position on judicial interim release applying the general principles set out in the Judicial Interim Release (Bail) Directive including the requirement for ongoing assessment of the strength of the Crown’s case. The Prosecutor must be conscious of the potential risk of harm in these cases and must seek a detention order where she considers it necessary for the safety and security of the victim or the public.

Where the accused is remanded in custody pending a bail hearing, detained or released on conditions, the Prosecutor should seek an order from the Court prohibiting the accused from having any contact with the victim, or where appropriate, any witnesses. The Prosecutor must ensure that any conditions she recommends on a bail release are necessary and appropriate to the circumstances of the alleged offence and the accused.

In all cases involving a victim under the age of eighteen, the Prosecutor must seek a publication ban directing that the identity of the victim and any information that could disclose the identity of the victim not be published or transmitted in any way. Reference should be made to the Publication Bans and Sealing Orders Directive.

The Prosecutor must ensure that efforts are made to notify the victim and/or where appropriate their parents or legal guardians of any release order, the conditions of release, including non-communication and any order detaining the accused. In all cases where there is reason to have concern for a victim’s safety, the Prosecutor must ensure that bail notification occurs as soon as possible. On request, the victim and/or where appropriate their parents or legal guardians must be provided with a copy of the court order.

Reporting Concerns to the Children’s Aid Society

Prosecutors have a statutory obligation to report to child protection agencies any case where they have reasonable suspicion that children are, or may be, in need of protection.

Child homicide investigation and prosecution

The death of a child under the age of 12 in suspicious circumstances raises many complex issues. The Child Homicide Resource Team provides advice during the investigation and prosecution of these cases. The assigned Prosecutor must consult with The Child Homicide Resource Team at the earliest opportunity.

Prosecution

Charge screening

The Prosecutor should determine whether the full gravity of the criminal act is reflected in the offence charged and recommend a more appropriate charge be laid if necessary.

The following factors should be considered when determining the offence charged is appropriate to the circumstances and whether to proceed summarily or by indictment:

  • the circumstances of the offence e.g. protracted sexual abuse; significant physical, emotional or psychological harm to the victim
  • whether the offence is alleged to have occurred within 6 months of reporting
  • the circumstances of the offender e.g. history of similar offences, position of trust/authority in relation to victim
  • the circumstances of the victim including the impact on the victim of testifying twice (at a preliminary inquiry and trial) and special vulnerabilities (disabilities, age of victim)
  • the potential range of sentence.

The Prosecutor should consider whether the accused should be flagged as a High Risk Offender or the subject of a Long Term Offender or Dangerous Offender Application. In those cases, the Prosecutor should consult with her Regional High Risk Offender Crown.

Reference should be made to the Charge Screening Directive, Dangerous/Long-term Offenders Directive and High-Risk Offender National Flagging System Directive.

Protecting the privacy of child victims

Prosecutors must be sensitive to the privacy interests and needs of child victims at every stage of the prosecution.

The Prosecutor should consider the directions set out in the Disclosure Directive concerning the disclosure of sensitive materials.

Publication bans and other restrictions on public access

In all cases involving a victim under the age of eighteen, the Prosecutor must seek a publication ban directing that the identity of the victim and any information that could disclose the identity of the victim not be published or transmitted in any way.

Where a concern exists that testifying publicly about a traumatic event may risk causing further trauma to a child victim, may inhibit testifying or may raise an issue respecting a victim’s safety, the Prosecutor may apply for an order excluding the public. The Prosecutor should have regard to the direction provided in the Publication Bans and Sealing Orders Directive.

Production of private records (third party records)

In order to gain access to a victim’s private information, such as their medical, psychiatric or personal records, the Criminal Code provides that the accused must establish that the private records are likely relevant to an issue at trial or to the competence of a victim to testify. The Prosecutor should engage V/WAP to assist the victim and/or where appropriate their parents or legal guardians in obtaining independent legal counsel to provide advice and represent their interests on the third party records application. The Prosecutor must not disclose victim’s records absent a court order.

Sexual abuse and/or activity

The Criminal Code provides that evidence that a victim has been sexually abused or engaged in prior sexual activity is not admissible. This evidence cannot be used to assess the victim’s credibility nor support an inference that the victim consented to the sexual activity.

Should the accused bring an application to have evidence of the victim being previously sexually abused or engaged in prior sexual activity admitted, the Prosecutor must advise the victim and/or where appropriate their parents or legal guardians that the victim is not required to testify at the hearing to determine the admissibility of the evidence. The Prosecutor must also advise the victim and/or where appropriate their parents or legal guardians that the Criminal Code prohibits publication of information provided on the application.

Cross-examination by a self-represented accused

In cases where an accused person is self-represented, the Prosecutor must seek an order appointing counsel to conduct the cross-examination of the victim.

Expert evidence

Before engaging an expert witness, the Prosecutor must obtain the prior approval of the Crown Attorney. Reference should be made to the Expert Evidence Directive.

Testimonial aids

Prosecutors should ensure that victims and witnesses under the age of 18 years, or their parents/legal guardian are informed of the availability of testimonial aids to assist them to communicate their evidence. Where appropriate, Prosecutors should apply for an order permitting the use of a testimonial aid. Reference should be made to the Testimonial Aids and Accessibility Directive.

Resolution discussions and sentence

The Prosecutor must ensure reasonable steps are taken to inform the victim and/or where appropriate their parents or legal guardians of a proposed resolution (e.g. guilty plea or proposed sentence) or that the charges will be withdrawn.

The Prosecutor must not negotiate a guilty plea in exchange for agreeing to forego a dangerous or long-term offender application without first consulting with the Regional High-Risk Offender Crown and her Crown Attorney.

Except with the prior approval of the Crown Attorney or designate, the Prosecutor must not:

  • withdraw or stay proceedings in cases involving sexual abuse
  • in cases involving sexual abuse, accept a plea to a lesser charge or non-sexual offence
  • reduce a charge or elect summarily solely to allow for the imposition of a conditional sentence
  • reduce or withdraw charge solely to avoid a mandatory minimum sentence or any ancillary orders.

Victim impact statement

As soon as feasible after a finding of guilt, the Prosecutor must ensure reasonable steps are taken to provide the victim and/or where appropriate their parents or legal guardians with the opportunity to prepare a Victim Impact Statement, and inform the victim of their right to present it to the court and their other options.

Restitution

The Criminal Code directs the court to consider making a restitution order and to ask the Prosecutor if reasonable steps have been taken to provide the victim and/or where appropriate their parents or legal guardians with an opportunity to indicate whether they are seeking restitution i.e. compensation for counselling. As soon as feasible after a finding of guilt, the Prosecutor must ensure reasonable steps are taken to provide the victim and/or where appropriate their parents or legal guardians with an opportunity to indicate whether the victim is seeking restitution for their losses and damages.

Ancillary orders

The Prosecutor must seek the following orders if applicable and remind the court of all mandatory orders:

Depending on the circumstances of the offence and the offender, Prosecutors should consider making an application for a prohibition order that would restrict the offender’s ability to interact with children under the age of 16, either in person or over the Internet.

Reference must be made to the following directives: DNA Data Bank Orders, Weapons Prohibitions and Forfeiture.