This resource provides information and answers to some common questions about criminal prosecutions for charges related to intimate partner violence.
The criminal legal system can feel intimidating and overwhelming. If you have questions about the process or would like support during this time, you are welcome and encouraged to contact us at the Journey Project.
A Note on Language: Language is important. It holds a lot of power. You may identify with the word âsurvivor,â âvictim,â both, or neither. The legal system may refer to you as a âvictim,â âcomplainant,â or âwitness,â even though you may not identify with any of these terms. This is the language used by the legal system and does not mean you or your reaction to the incident is being judged. In this guide, we use the term âsurvivor.â However, we know that not everyone who has experienced gender-based violence will identify this way.
If you would like to speak with a Legal Support Navigator (LSN), you can reach us through email, text, phone, or our social media pages. We are available Monday to Friday, 9:00am – 4:00pm.
TEL 1-709-722-2805
TOLL-FREE/VRS 1-833-722-2805
TEXT: 709-986-2801
EMAIL: support@journeyprojectnl.com
There are many different people and places you may encounter within the criminal legal system with different roles and responsibilities. They may include, but are not limited to:
Crown Attorney – A Crown Attorney, usually referred to as a âProsecutorâ, a âCrown Prosecutorâ, or simply âthe Crownâ, is a lawyer who prosecutes offences from the Criminal Code. They are government employees whose role is to administer justice in a way that is fair, objective, and impartial. Their goal is not to obtain a conviction, but to assist the court in discovering the truth, to protect the public, and to uphold justice while ensuring that the accused receives a fair trial. [1]
Defence – A defence lawyer represents a person charged with a criminal offence. It is their job to ensure that the rights of the accused are protected throughout the criminal process. Their job is to question the evidence the Crown has presented and try to raise a reasonable doubt about the guilt of the accused. [2]
Judge – The judge is a public official appointed to decide cases in a court of law and is the person in charge of a criminal trial. They listen to what is said in the Court and decide if the accused person is guilty or not guilty, unless there is a jury to make this decision instead.[3] The Judge acts a bit like an impartial ârefereeâ to a criminal proceeding and similar to the Crown Attorney, will work to ensure that a fair trial is conducted.
Jury – A jury is a group of members of the public (usually 12, but could be up to 14 people) who are asked to attend the Court to listen to everything that is said in the trial and to decide if the accused person is guilty or not guilty. They get their instructions from the judge and are not allowed to have contact with the accused or with the witnesses.[4] Jury trials are fairly rare in Newfoundland and Labrador and usually only occur for very serious cases tried in the Supreme Court of Newfoundland and Labrador, such as those involving murder charges.
Provincial Court of Newfoundland and Labrador
The Provincial Court of Newfoundland and Labrador (NLPC) is the lowest tiered court in the Province. The NLPC handles the vast majority of criminal cases in the province as well as some civil matters, such as small claims court. In select locations, the NLPC also hears family law matters. The NLPC is generally a more accessible court and is the one to be frequented most commonly by the public. While the NLPC has the jurisdiction to hear most criminal cases, there are some charges such as murder that must be heard in the Supreme Court of Newfoundland and Labrador.Â
For additional information, visit: https://www.court.nl.ca/provincial/
Supreme Court of Newfoundland and Labrador
The Supreme Court of Newfoundland and Labrador (NLSC) is the second highest court in the Province, falling just below the highest court – the Court of Appeal. The NLSC is divided into two divisions – the “General Division” and the “Family Division”. The General Division hears the majority of civil cases in the province while the Family Division hears the majority of family cases. Some criminal offences are also heard in the NLSC and all jury trials are heard here as well.
For additional information, visit: https://www.court.nl.ca/supreme/
Intimate Partner Violence Intervention Court
Intimate Partner Violence Intervention Court (IPVIC) is a specialized criminal court. It follows the same laws as traditional criminal court; however, it is administered in a way that promotes rehabilitation and accountability of offenders. It is a voluntary process, where the accused can be referred directly from their first court appearance, or request it through an application. Currently, the IPVIC is only available in certain courts in the province.
For additional information, visit: https://www.court.nl.ca/provincial/courts/intimate-partner-violence-intervention-court/
Intimate partner violence can include both criminal and non-criminal behaviours. The Criminal Code of Canada lists all criminal offences and may include their maximum punishments. Criminal offences commonly associated with intimate partner violence include, but may not be limited to:Â
IPV-related offences can also include those that fall under property crime, weapons offences, and financial crime.
If there are reasonable and probable grounds that demonstrate an offence has taken place, the police can lay a criminal charge. This means that a âreasonable personâ with the same information as the police and with an understanding of the law and the Criminal Code may find that probable grounds exist to lay a charge: this means that police must also have more than just a suspicion that a crime has been committed – they must have enough evidence to show that it is likely or probable that a crime has been committed by the person accused.Â
Evidence can include a survivorâs statement, injuries, disturbances at the scene of an incident, comments of persons at the scene, comments between the victim and suspect, CCTV footage or audio/video recordings, property damage, witness statement(s), forensics or any other corroborating evidence.Â
In situations of intimate partner violence, once reasonable and probable grounds are established, it is police policy to lay a charge. In some situations, and dependent on the evidence available to the police, a charge may be laid regardless of the willingness of the survivor to provide a statement or give other evidence. In many cases, a charge can be laid even if the survivor requests that it not be. Each situation is specific to the facts and information available to the police at the time of their involvement.
When a person is charged with a criminal offence by the police, a process happens that is usually referred to as being âarrested.â This process involves the police telling the person their rights, including the right to remain silent and the right to speak with a lawyer. The police will also tell the person what criminal offence(s) they are being accused of. This process may happen at the police station, but it can also happen at the personâs home or in other locations.
The person charged (now called âthe accusedâ) will either be released back into the community or remain in custody (jail) until they are either released on bail or the case concludes.
Following an arrest, police officers have authority in some instances to either detain or release an accused person charged with an offence. If the accused is released, they may be released on an appearance notice, with or without conditions. An appearance notice is a legal document that says the accused must attend court at a particular date and time and is used in lieu of holding an accused in custody. If the accused is put on conditions, they will be given an undertaking. An undertaking must contain a condition for the accused person to attend court and may include other optional conditions, such as prohibiting the accused from having contact with the survivor, that the accused must then abide by as part of their release from custody. The decision to place an accused person on optional conditions in the context of an undertaking is left to the discretion of the police. A list of potential conditions can be found in section 503 of the Criminal Code of Canada. An undertaking is often used for less serious offences where there is no threat to public safety.
Depending on the circumstances, repetitiveness, and seriousness of the offence, the accused may have to remain in custody until they can appear before a judge. If held in custody, the accused must appear before a judge within 24 hours or as soon as possible for a first appearance. The purpose of this first appearance is to have the charges against the accused person read out in court, to make sure that the accused person understands the charges against them, and to allow them an opportunity to voice their intentions regarding potential release or bail.
A survivor does not have to attend the first court appearance. It is their choice whether or not they would like to attend. A survivor’s presence or absence at this appearance will have no impact on the case whatsoever.
At the first appearance, the judge will read the charges against the accused. The judge will ask the accused if they understand the charges against them, if they have a lawyer, and if they are prepared to enter a plea of guilty or not guilty. If the accused does not have a lawyer, and is not prepared to enter a plea, then another court date will be scheduled. It is exceptionally rare for an accused person to be ready to enter a plea at their first appearance.
At the first appearance before the judge, or at the next court appearance, a bail hearing may be held if the accused was held in custody after the arrest. A bail hearing must be held within three days of the accusedâs arrest, unless the accused person agrees to stay in police custody longer. The purpose of the bail hearing is to determine whether the accused may be released from custody until the actual trial, and if so, what conditions and requirements they must be bound by in order to reduce any risk they pose to individuals or society at large.Â
Under Canadian law, there is a presumption that a person arrested and charged with an offence will not be held in custody while awaiting trial. It is the Crown Attorneyâs job to make sure bail decisions happen quickly, that the rights of the accused, public safety, and the safety and security of the victim are all considered.[5] When a Crown believes that an accused should be held in custody until trial, it is their responsibility to show the court why the accused should not be granted bail.[6]Â
There are three general reasons why an accused person might not be granted bail and kept in custody until their trial:
If the accused has been charged with serious criminal offences related to intimate partner violence and/or there is concern for public safety, and that accused person has previously been convicted of certain offences such as those where violence was used, attempted or threatened against any previous intimate partner, there may be a reverse onus at bail. This reverse onus rebuts, or removes, the presumption that an accused person will be released on bail and instead means the accused has to convince the court that they should be released. This is to make it more difficult for an accused person to get bail when there is a history of intimate partner violence[7] and allows the court to take a deeper look at an accused person’s past offences and potential for violence in the context of their previous intimate partner relationship(s). Reverse onus occurs in situations when:
If bail is denied, the accused will remain in custody until trial. This is called remand. In some instances, an accused person can request a review of the court’s decision to remand them into custody from the Supreme Court of Newfoundland and Labrador.
If the accused is released from custody after the bail hearing, there are several options. They may be released on a judicial interim release order (also commonly referred to as a release order) with or without conditions. If they are released with conditions, the judge will take into account the type of offence, alleged evidence, and the circumstances of the case.
Possible conditions include:
These conditions may be enforceable through a release order. A release order is a signed agreement to follow the conditions, which may or may not include financial penalties for any breach of the conditions. If a release order is granted that includes a financial commitment, then a refundable deposit may have to be paid by the accused or another person who agrees to assume responsibility for the accused. This other person who assumes responsibility for the accused is called a surety. A surety may have responsibilities that include but are not limited to: living with the accused person, calling the police in the event they are aware that an accused person is breaching a condition, or supervising an accused person when they are outside of the home during curfew hours.Â
Breaking any of the conditions of a release order or other release document can result in additional charges and bail being revoked. That means the accused would be taken into custody again and have to stay in custody either until another bail hearing is held or until their trial. The accused may also be charged with the additional criminal offence of failing to comply with their release order.
The Crown must ensure that efforts are made to notify the victim of any release order, conditions of release, or any order detaining the accused. These updates will likely come from a Victim Services Coordinator
In all cases where there is a reason to have concerns for a victim’s safety, the Crown must ensure efforts are made for bail notification to occur as soon as possible. On request, a victim may be provided with the court order. Similar notification should be made to victims when there is a bail variation (change) or bail review.[8]
The accused may appear in court several times before a plea is entered. By law, the judge is required to make sure that an accused person has enough time and resources to make their decision, and the ability to meaningfully access legal counsel. The accused and their lawyer must also be given disclosure from the Crown before entering a plea. Disclosure is all the evidence that the Crown intends to relay at trial, and any information which may assist the accused, whether intended to be used in court or not.[9] The disclosure must also be carefully reviewed and vetted by the Crown to ensure that the accusedâs rights are respected as well as to ensure that information that may disclose the contact information or address of victims and witnesses is properly redacted, amongst other items. For these reasons, it can take a few months and several court appearances before a plea of guilty or not guilty is even entered.Â
You are not required to attend any of these court appearances. If you would like to find out what has happened at any appearance, a Victim Services Coordinator can keep you informed with specific updates from your case.
You can also check the daily court docket or call the court where the case is being heard. The court docket is public and lists all upcoming cases being heard in both Provincial and Supreme Court.Â
Provincial Court Docket – https://docket.court.nl.ca/
Supreme Court Docket – https://www.court.nl.ca/supreme/upcoming-trials-and-hearings/court-docket-2/
Victims have rights in the criminal court system. These are outlined in the Canadian Victims Bill of Rights.[10]
Victims/survivors have a right to information about their case. This includes the status and outcome of police investigations, the scheduling, progress and outcome of criminal proceedings, and copies of any court orders about bail, conditional sentence and probation.
The police should refer you to Victim Services as soon as they receive your complaint or report of intimate partner violence.
Victim Services is a voluntary, free, and confidential program that supports you throughout the criminal justice process.
Victim Services Provides:
â General information about the criminal justice system
â Information on your specific case
â Safety planning
â Court preparation
â Assistance with completing and submitting your victim impact statement
â Referrals to other community organisations and agencies
â Emotional support and short-term counselling as you prepare to go to court
Victim Services does NOT provide legal advice.
Victim Services has several offices throughout Newfoundland and Labrador. For more information or to contact your regional office, visit:
https://www.gov.nl.ca/victimservices/
There can be a lot of confusing legal jargon used throughout the court process. Depending on the charges laid, a court matter will be heard in either Provincial Court or Supreme Court. You are not required to understand all of the specifics of this. However, it can be helpful to understand why your matter ends up in one court or the other, or how a judge makes a decision on the length and type of sentence.
Summary offences are considered less severe offences under the Criminal Code. Charges must be laid by the police within 12 months of the incident. For most summary conviction offences, there is a maximum sentence of two years less a day in jail, a fine of $5,000, or both. Examples of summary offences include trespassing, theft under $5,000, public intoxication, and causing a disturbance.
Indictable offences are considered more serious in the Criminal Code and typically carry a higher maximum sentence. There is no time limit on when charges can be laid on serious criminal offences. Examples of indictable offences include kidnapping, overcoming resistance to commission of offence to choke, suffocate, or strangle another person, aggravated sexual assault, aggravated assault, kidnapping, arson, manslaughter, and first degree murder.
These are the types of offences where the Crown Attorney can choose how to proceed with the charge in court. This means, the Crown Attorney will decide if they will prosecute the charge as a summary or indictable offence. These types of offences cover the majority of Criminal Code offences including criminal harassment, assault, sexual assault, distribution of intimate images, uttering threats, and other offences commonly associated with intimate partner violence.
It depends on what type of charges are laid. Most criminal cases are heard at the Provincial Court, while more serious criminal cases are heard at the Supreme Court.
Summary offences are only heard in Provincial Court by a judge alone, without a jury.Â
Indictable Offences can be heard in either Provincial Court or Supreme Court. The accused can decide where the case will be heard.
If the accused decides on Provincial Court, the matter will be heard by a judge alone, without a jury. There will also be no preliminary inquiry.
If the accused chooses the Supreme Court, they have the option of choosing a trial by a judge alone or a trial by judge and jury. The accused might also have the option to have a preliminary inquiry depending on the offence. If this is the case, you may be asked to testify twiceâonce at the preliminary inquiry and once at the trial. In some instances, the Crown may be able to proceed with a preliminary inquiry while using a previously written and/or audio recording of a victim or witness’s statement without having to ask them to physically testify.Â
Hybrid Offences are unique in that the Crown decides to proceed either by summary or by indictment. What the Crown decides will impact where the matter is heard and therefore what options an accused person may have.
In indictable offences (or hybrid offences that are proceeding by way of indictment) a preliminary inquiry may be held if the accused elects to do so. A preliminary inquiry is a hearing held to determine whether or not the Crown has enough evidence against an accused person to justify holding a trial. It is essentially a pre-trial screening to filter out cases that are not strong enough to go to trial. These are typically held at Provincial Court. It is not your responsibility to make a strong case. It is also not your fault if the matter does not go to trial. This decision is made by the judge.
A survivor may be called to provide testimony at a preliminary hearing, or their previously written and/or audio recorded evidence may be entered. This decision is made by the Crown.
The court can dismiss the charge(s) if it finds there is not enough evidence to go to trial. This can be difficult for survivors as it can lead to feelings of not being believed. However, it is important to remember that the courtâs decision is based on whether or not there is enough evidence to proceed and is not a declaration of innocence or guilt. Regardless of what happens here, you are still deserving of support.
If the preliminary inquiry results in the judge finding there is enough evidence to proceed, the accused will stand trial, and an arraignment date is set. This is the first appearance in Supreme Court where the accused will enter a guilty or not guilty plea. If they enter a not guilty plea, a trial date is set.
If you are required to testify in any court, you may receive an order, issued by the court and delivered by the police, telling you when and where you are required to appear. This is called a subpoena. A Victim Services Coordinator can help you prepare for court. This might include arranging for you to visit an empty courtroom before your court date, or showing you pictures or videos about court to help you prepare. They can explain the roles of everyone in the courtroom (e.g. the judge, court clerk, sheriff’s officer, etc.) and help you to understand what to expect in criminal court.
You may also have an opportunity to meet with the Crown Attorney before trial to prepare as a witness. The Crown, or with support from Victim Services, may:[11]
Before trial, the Crown and the defence are encouraged to engage in resolution discussions. These discussions decide how the case may proceed, define what an appropriate sentence may be, determine what the facts are for the purpose of a guilty plea, or generally discuss issues that may speed up the process.[12] Sometimes in exchange for a guilty plea, the Crown may drop or reduce some of the charges against the accused. This is called a plea agreement.
If the accused pleads guilty, the Crown and the defence may try to come to an agreement about the proposed sentence. The Crown should inform you if this happens.
Survivors do not have control over the decisions made in a criminal matter. Their interest may be taken into account, but ultimately the Crown serves the public interest.
If the accused enters a guilty plea, the next step is a sentencing hearing.
The trial itself is where the Crown and defence call witnesses and present evidence to the judge or jury about the accused.
This is done through direct and cross-examination questions. The Crown always presents their case first, followed by the defence. The Crown always goes first because they have the burden of proof.
In criminal law, the burden of proof lies completely with the Crown. This means that the Crown has to prove beyond a reasonable doubt that the accused has committed a crime. This means the judge (or jury) must be almost absolutely certain that the accused is guilty of the crime(s) they are on trial for.Â
The Crown can call anyone with information relevant to the prosecution as a witness to help prove guilt beyond a reasonable doubt, except for the accused person.
It is important to note that the Crownâs primary duty is not to secure a conviction at any cost. Instead, the Crown is responsible for ensuring that a fair trial is conducted for all parties through an accurate presentation of all of the evidence with the intention of preserving the integrity of the justice system.
The job of the defence is to point out every possible reason why the judge (or jury) should find the accused not guilty.
The defence will have the opportunity to cross-examine (question) every witness that the Crown calls. They may decide to call their own witness or decide not to call any additional witnesses at all.Â
The defence may call the accused as a witness if they choose. However, the accused has the right to remain silent – this means the accused does not have to testify, so they may not speak at all during their trial.
The defence usually focuses on the survivorâs truthfulness and inconsistencies in their evidence, statements, or testimony. This is to create reasonable doubt.
If one side calls a witness, they can only ask direct, or non-leading questions. During direct examination the witness will be asked a set of questions with the purpose of telling their story in their own words. The Crown’s direct examination is to establish the essential elements of an offence, so if questions seem unusual or obvious it is likely an attempt to satisfy a required but seemingly unimportant detail (such as date, time, or jurisdiction). If the question suggests the answer to the witness, or in other words âleadsâ the witness towards a certain answer, then the other lawyer will likely object to the question. After direct examination is finished, the other side has the opportunity to cross-examine the witness.
After one side is finished, the other can ask questions. These can include leading questions, close-ended âyesâ or ânoâ questions, or clarifying questions that are meant to poke holes in the witnessâs story. The defence is not required to provide disclosure to the Crown and can call witnesses to provide evidence to either support their defence or undermine the Crownâs case.
Testifying can be incredibly difficult. Cross-examination by the defence can be particularly invasive for survivors of intimate partner violence. Many people describe this process as re-traumatizing. We recommend bringing a support person with you and using other court supports that are available, like Victim Services and testimonial aids.
In Canadaâs legal system, a person charged with a criminal offence is considered innocent until proven guilty. This means that although the survivor sees the accused as guilty, the court does not. The judge (or jury) must be convinced beyond a reasonable doubt that the accused is guilty. This is a high standard of proof. If there is a reasonable doubt, the accused must be found not guilty. A not guilty verdict does not mean that the offence did not happen. It means the Crown was not able to prove guilt beyond a reasonable doubt. Even if the court thinks the accused is maybe guilty, or even probably guilty – that is not enough to convict the accused.
In most intimate partner violence trials, the evidence presented largely consists of witness testimony. This generally includes the survivor, the accused, and any other potential participants or witnesses. The accused will be present throughout the trial, including when you testify. They have a right to decide whether or not to take the stand and testify during the trial. The survivor does not.
When you testify, you are required to tell the truth. You will have to swear or affirm an oath to tell the truth before you testify. You may be asked invasive or embarrassing questions, or to recall details that you have already provided multiple times. This can be very difficult. Try to provide as much information as possible. You should answer all questions as completely and truthfully as you can. If you do not know the answer to the question or cannot remember, it is ok to say that. There are also supports and testimonial aids that may be available to you during trial.Â
Common witnesses who may be called to testify include the police, any friends or family who witnessed the offence(s), or anyone you disclosed to.
Your statement to the police and your testimony is considered evidence. You may hear the term real evidence being used. Real evidence includes things that you can touch and see like physical or electronic documents, records, contracts, pictures, videos, fingerprints, bullet casings, a weapon, clothing, and DNA samples.Â
It is common to feel nervous, reluctant, or even afraid to testify against an intimate partner who has harmed you. There may be on-going or concurrent family law matters, or child protection may be involved. There are supports that the Crown can put in place for your comfort and safety.
If you are feeling nervous or hesitant to testify, it is recommended that you speak to a Victim Services Coordinator and/or the Crown as soon as possible to discuss your concerns.
Seeing the accused and testifying in court can be overwhelming and difficult. Many people find it helpful to have a support person in the courthouse with them. This can be a friend, family member, or a professional like a Victim Services Coordinator.
The Criminal Code contains a number of provisions that tries to make it easier for victims and witnesses to provide their testimony in court proceedings. These are called testimonial aids and are sometimes available to survivors. These must be requested by the Crown before you testify and can include:
For survivors over the age of 18, these testimonial aids must be applied for by the Crown and are ultimately at the discretion of the judge as to whether they are granted or denied. Survivors should, at the earliest possible opportunity, indicate to Victim Services and/or the Crown their desire to use a testimonial aid. Survivors will be required to meet with Victim Services prior to the application being made to allow Victim Services to write an affidavit for the Crown to use in support of the application.
A publication ban is when the Crown requests a ban that prevents your name and/or any identifying information about the proceedings from being published or broadcast. Preliminary hearings can be included in publication bans. Some offences, such as a sexual assault, provide for publication bans to be implemented automatically and without debate upon the Crownâs request.Â
If for any reason you do not wish for there to be a publication ban in place, you should notify the police and/or the Crown at the earliest opportunity.Â
A verdict is a formal decision made by either the judge (or jury). The judge (or jury) must decide if the accused is guilty or not guilty.
For the accused to be found guilty of a crime, the Crown must prove the criminal act and criminal intent of the accused beyond a reasonable doubt. For a finding of guilt, the judge or jury must be certain that there is no other reasonable explanation. They must be sure that the accused committed the crime that was brought to trial.
A not guilty verdict is sometimes called an acquittal. This does not mean the offences did not happen or that you are not believed. A not guilty verdict means that the Crown did not prove their case beyond a reasonable doubt.
Many people expect a verdict to be delivered as soon as closing arguments are made by the Crown and the defence. This rarely happens and there may be weeks or even months before a verdict is given. In some cases, the judge may write out the reasons for their verdict, but this does not happen in every criminal case.Â
Once delivered, either the Crown or the defence can appeal any verdict within 30 days. The Crown cannot appeal a verdict simply because the result is not the one, they or a survivor had hoped for. There must be a legal or procedural error that occurred for the Crown to consider making an appeal.
At a sentencing hearing the judge determines the appropriate sentence for the offender. During the sentencing hearing, evidence and arguments will be presented to the court to help the judge decide on the sentence.
The Crown and the defence may make the same sentencing recommendations, which is called a joint submission. Judges rely on guidance from both the Criminal Code, case law, and their own judicial discretion when imposing a sentence. Depending on the type of offence, there are restrictions around maximum and minimum penalties.Â
The Canadian Victims Bill of Rights[13] states that survivors are entitled to provide a Victim Impact Statement (VIS) if they wish to do so. Â
A VIS is a written statement that describes the physical, emotional, mental, and economic harm that the survivor experienced. It is an opportunity for a survivor to explain how the offence made them feel, as opposed to just explaining to the court the facts that made up the offence.
A VIS can be prepared by anyone who was impacted by the offence, not just the direct victim. At a sentencing hearing, the VIS can either be read to the court by the author, read by the Crown, or entered as a written document to the judge.Â
For assistance completing and submitting a VIS, survivors can contact Victim Services.Â
Survivors should be aware that the accused person will get a copy of their VIS and has the right to challenge its contents if it discloses facts or positions that were not already accepted by the judge. To ensure there are no issues, a VIS should focus on feelings and impacts, and not on the facts of the incident.
Other factors are considered when sentencing, including pre-sentencing reports and Gladue reports for Indigenous offenders. Pre-sentence and Gladue reports generally contain information about the accused person, their background, and life circumstances. The purpose of these reports is to give the judge an idea as to what the accused person’s life was like and what, if any, factors may have resulted in their criminality and/or likelihood to commit further offences. These reports are usually completed by probation officers and may contain recommendations for sentences that are suitable or unsuitable for the accused. Despite what is written in these reports, the ultimate discretion to impose a specific sentence rests with the judge and any applicable provisions of the Criminal Code. In other jurisdictions in Canada, Impact of Race and Culture Assessments are pre-sentencing reports for Black and other racialized Canadians. The judge will also consider if any Charter Rights of the offender were violated, if the victim was an intimate partner, if weapons were used, and any other factors which might speak to the severity of the offence.
Both the Crown and the defence have the right to appeal a verdict or sentence within 30 days if they think the judge made a mistake in one of these areas: reasons for deciding a verdict; reasons for deciding a sentence; or instructions to the jury. To appeal means to have a trial decision reviewed by a higher court. An appeal is not a new trial, and no witnesses are required to give evidence.
Sometimes charges are not laid, or the charges that are laid against the accused might seem âless seriousâ than the violence or harm that you reported. Each offence in the Criminal Code is broken down into elements that make up the offence. To lay a charge, the police need to have evidence that supports all the elements of the criminal offence.
For example, in cases of intimate partner violence involving physical violence, the circumstances of the case, including the survivorâs injuries, may determine if the accused is charged with assault, assault causing bodily harm, assault with a weapon, or another offence.Â
As an example, to lay a charge of assault causing bodily harm, it has to be shown that force was applied intentionally to another person (directly or indirectly) without that personâs consent, resulting in physical injuries. Bodily harm is defined in the Criminal Code as âany hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in natureâ. This means that the impact on health or comfort and injury must last more than a very short period of time, and must result in more than a minor degree of distress.
For example, while someone may have been physically harmed and experienced some pain, meeting the criteria for an assault charge, the legislative threshold to lay a charge of assault causing bodily harm or other more serious criminal charges may not be met.
Charges may be withdrawn if the Crown determines there is not a reasonable likelihood of conviction, or the public interest is not served by prosecuting the offence. This assessment may be made if there is insufficient evidence, such as a survivor or witness being unwilling to testify.
Pre-trial conferences are mandatory for cases in which a jury trial is to take place. They can also take place in judge alone trials, in both Supreme and Provincial Court. Their purpose is to narrow the issues before going to trial, and to encourage resolution discussions to avoid going to trial.
It is difficult to determine how long criminal proceedings will take. Under the law, the accused has the right to a trial within a reasonable time. There are parameters that determine a reasonable length of time for cases to be heard. A Supreme Court of Canada case called R. v. Jordan set the time frame, or ceiling, at 18 months for most trials at Provincial Court and 30 months for trials at Supreme Court or indictable trials held at Provincial Court after a preliminary inquiry. This time frame is calculated from when a charge is laid to the actual or anticipated end of trial. Under this ruling, any amount of time longer is considered unreasonable, except in exceptional circumstances. Delays caused by the accused person or their lawyer are not counted in calculating the time taken to complete a trial.
You do not need to hire a lawyer. During a criminal trial, a victim/witness is not entitled to a lawyer in the same way an accused person is. In fact, a victim is not allowed to be represented by a lawyer in court (except in very rare and specific circumstances). The victim is considered a witness for the Crown. The Crown represents the public interest – they are not your lawyer.Â
However, you have the right to access independent legal advice at any point throughout the criminal justice process.
The Journey Project offers eligible participants referrals for free legal advice through the Journey Project Legal Support Service. This service is available to people of all ages and genders who have experienced any form of sexual violence and/or intimate partner violence and (1) are currently living in Newfoundland and Labrador or (2) living outside the province but experienced an incident of sexual violence and/or intimate partner violence in Newfoundland and Labrador.
If a witness in an intimate partner violence case refuses to testify or does not show up to court to testify, the Crown may consider one or more of the following options:
If the proceedings are terminated and charges are withdrawn, the decision is absolute and final. They cannot be re-reported or re-tried, and any no-contact conditions the accused was under are no longer in place.
The Victims Portal is a secure online service that allows victims of an offender and/or their named representative to access specific information and services online, as defined in law, from the Correctional Service of Canada (CSC) and the Parole Board of Canada (PBC). The Correctional Service of Canada deals with offenders during their sentence, while the Parole Board of Canada deals with offenders leading up to and upon release.
Once registered with the Victims Portal, victims or their named representative can request and access specific information concerning the offender who harmed them and manage their preferences for receiving information. Registration refers to the act of being officially recorded as a victim of crime or as a victim representative with the Correctional Service of Canada (CSC) and the Parole Board of Canada (PBC).Â
Once registered, a victim will be provided information including:
Additional information may be disclosed to the victim. This information may include: the name and location of the penitentiary in which the sentence is being served; any serious disciplinary offences that the offender has committed; if the offender is transferred to another institution; the offenderâs correctional plan and if any progress has been made. This list is not exhaustive, and this information would only be provided at the discretion of the Commissioner.[14]
Victims can also:
For additional information, visit: https://victimsportal-portailvictimes.csc-scc.gc.ca/Main/Home
The Journey Project exists to strengthen justice supports for survivors of sexual violence and intimate partner violence.
The Journey Project was founded in 2017 as a collaborative initiative of Public Legal Information Association of NL and End Sexual Violence NL.
Journey supports survivors of any age and any gender and is provincial in scope. This means people living anywhere in Newfoundland and Labrador can access our services. It also means that anyone who has experienced sexual violence and/or intimate partner violence in Newfoundland and Labrador can access our services â even if they are living in another province, or another country.
The Journey Project team is grateful to every survivor who has informed this project and our work.
[1] Government of Newfoundland and Labrador. (2022). Guidebook of policies and procedures for the conduct of criminal prosecutions in Newfoundland and Labrador. https://www.gov.nl.ca/jps/files/public-prosecutions-guide-book.pdf
[2] Government of Canada. (n.d.). Role of people in the court. https://www.justice.gc.ca/eng/cj-jp/victims-victimes/court-tribunaux/role.htmlÂ
[3] Ibid.
[4] Ibid.
[5] Government of Newfoundland and Labrador. (2022). Guide book of policies and procedures for the conduct of criminal prosecutions in Newfoundland and Labrador, p. 9-1. https://www.gov.nl.ca/jps/files/public-prosecutions-guide-book.pdf
[6] Department of Justice Canada. (2023). Fact sheet: the bail process. https://www.justice.gc.ca/eng/cj-jp/bail-caution/index.htmlÂ
[7] Ibid.
[8] Government of Newfoundland and Labrador. (2022). Guidebook of policies and procedures for the conduct of criminal prosecutions in Newfoundland and Labrador, p. 9-11.
[9] Government of Newfoundland and Labrador. (2022). Guidebook of policies and procedures for the conduct of criminal prosecutions in Newfoundland and Labrador, p. 10-3.
[10] Canadian Victims Bill of Rights available at ttps://laws-lois.justice.gc.ca/eng/acts/c-23.7/page-1.html
[11] Government of Newfoundland and Labrador. (2022). Guidebook of policies and procedures for the conduct of criminal prosecutions in Newfoundland and Labrador, p. 22-18.
[12] Government of Newfoundland and Labrador. (2022). Guidebook of policies and procedures for the conduct of criminal prosecutions in Newfoundland and Labrador, p. 13-1.
[13] Canadian Victims Bill of Rights – https://laws-lois.justice.gc.ca/eng/acts/c-23.7/FullText.html
[14] Corrections and Conditional Release Act. (S.C. 1992, c. 20) Retrieved from Justice Laws website: https://laws-lois.justice.gc.ca/PDF/C-44.6.pdf