Election: How the Case Gets to Trial
Sexual assault under section 271 of the Criminal Code is a hybrid offence, meaning the Crown can proceed by summary conviction or by indictment. This decision, called the Crown’s election, determines the procedural track for the case.
If the Crown proceeds summarily, the case is tried in the Ontario Court of Justice before a judge alone. The maximum penalty is 2 years less a day.
If the Crown proceeds by indictment, the accused has a further election: trial by judge alone in the Ontario Court of Justice, trial by judge alone in the Superior Court of Justice, or trial by judge and jury in the Superior Court. The maximum penalty on indictment is 10 years.
The choice of trial mode is a significant strategic decision. It affects everything from the pace of proceedings to the composition of the decision-maker.
Preliminary Inquiry
For indictable offences tried in the Superior Court, the accused may request a preliminary inquiry — a hearing before a judge in the Ontario Court of Justice to determine whether there is sufficient evidence to commit the accused to stand trial. The threshold is low: the judge asks whether there is any evidence upon which a properly instructed jury could convict.
Despite the low threshold, preliminary inquiries serve an important strategic function. They provide defence counsel with an opportunity to cross-examine the complainant and other Crown witnesses under oath before trial. The transcripts from the preliminary inquiry become powerful tools at trial if the witness’s testimony changes.
In some cases, the preliminary inquiry can end the prosecution entirely. If the evidence is weak enough, the Crown may invite the judge to discharge the accused rather than proceed to trial.
Pre-Trial Applications
Before the trial proper begins, either side may bring pre-trial applications that can shape the evidence the judge or jury will hear. In sexual assault cases, several types of applications are particularly common:
Section 276 applications (prior sexual activity). Section 276 of the Criminal Code restricts evidence of a complainant’s prior sexual activity. The defence cannot use this evidence to argue that the complainant was more likely to have consented or is less credible. However, if the evidence is relevant to a live issue at trial — for example, to explain the source of physical evidence or to show a pattern of conduct directly relevant to the allegation — the defence can bring a section 276 application. These applications are heard in a closed proceeding, and the complainant has the right to participate through counsel.
Section 278 applications (third-party records). Section 278 governs access to a complainant’s private records held by third parties — medical records, counselling records, school records, or employment records. To obtain these records, the defence must establish that the records are “likely relevant” to an issue at trial and that the production of the records is necessary in the interests of justice. The process involves a two-stage hearing: first, to determine whether the records should be produced to the judge for review; second, to determine whether any of the records should be disclosed to the defence.
Charter applications. If the police violated the accused’s constitutional rights during the investigation — through an unlawful search, failure to provide the right to counsel, or other breaches — the defence can bring a Charter application to exclude the resulting evidence under section 24(2). The exclusion of key evidence can fundamentally alter the case.
Similar fact applications. Where multiple complainants allege similar conduct, the Crown may seek to have the cases tried together or to introduce evidence from one complaint in the trial of another. The defence can oppose these applications by arguing that the evidence is more prejudicial than probative or that similarities between the complaints result from collusion or contamination rather than the accused’s conduct.
The Crown’s Case
At trial, the Crown presents its case first. The Crown bears the burden of proving every element of the offence beyond a reasonable doubt. The accused is presumed innocent and has no obligation to prove anything.
In most sexual assault trials, the complainant’s testimony is the centrepiece of the Crown’s case. The complainant testifies about what happened, and is then subject to cross-examination by defence counsel. Cross-examination is the primary tool for testing the reliability and credibility of the complainant’s account. Effective cross-examination identifies inconsistencies with prior statements, contradictions with other evidence, gaps in memory, and implausibilities in the narrative.
The Crown may also call other witnesses: police officers who investigated the complaint, forensic experts (DNA analysts, medical professionals), and civilian witnesses who may have observed relevant events or who can speak to the complainant’s behaviour before or after the alleged offence.
The Defence’s Options
After the Crown closes its case, the defence has several options:
No-evidence motion. If the Crown’s evidence is insufficient to establish a case on any essential element of the offence, the defence can bring a motion for a directed verdict of acquittal (in a jury trial) or a no-evidence motion (in a judge-alone trial). If granted, the accused is acquitted without calling any defence evidence.
Calling evidence. The defence may call witnesses, including the accused. The accused is never required to testify, and no adverse inference can be drawn from the decision not to take the stand. However, in cases that turn on competing accounts of what happened, the accused’s testimony can provide the judge or jury with a basis for reasonable doubt. The decision whether to testify is one of the most consequential strategic choices in a sexual assault trial.
Resting without calling evidence. The defence may choose to call no evidence at all and rely entirely on cross-examination of the Crown’s witnesses and closing argument. This can be an effective approach where cross-examination has significantly undermined the complainant’s credibility and any additional evidence might introduce unnecessary risk.
Credibility and the W.(D.) Framework
In most sexual assault cases, the verdict turns on credibility. Where the accused testifies and the case involves two competing versions of events, the judge must apply the framework from R v W.(D.) (1991), which asks three questions:
- If the judge believes the accused’s evidence, the accused must be acquitted.
- Even if the judge does not believe the accused, if the accused’s evidence raises a reasonable doubt, the accused must be acquitted.
- Even if the accused’s evidence does not raise a doubt, the judge must still ask whether the Crown has proven guilt beyond a reasonable doubt on the whole of the evidence.
This framework is significant because it means the accused does not need to be believed to be acquitted. If the accused’s testimony — or any other evidence — raises a reasonable doubt, that is sufficient for acquittal.
Verdict
After closing arguments, the judge (or jury) delivers a verdict. In a judge-alone trial, the judge provides written or oral reasons for the decision. In a jury trial, the jury deliberates in private and delivers a verdict without reasons.
If the verdict is not guilty, the accused is acquitted and the charges are dismissed. The accused is immediately free of the bail conditions that were imposed during the proceedings.
If the verdict is guilty, the case proceeds to sentencing. The judge may sentence immediately or set a future date for sentencing submissions from both the Crown and the defence.
Representative Case Results
The following cases from the firm’s published results illustrate the range of sexual assault trial outcomes:
- R v I.C. — Client was charged with sexual assault in Newmarket. After a one-week trial by judge and jury, the accused was found not guilty.
- R v D.C. — A youth client was acquitted of sexual assault after a four-day judge-alone trial in Brampton. The defence brought a pre-trial section 276 application, which was granted by the trial judge, allowing the defence to question the complainant about other sexual acts. The complainant denied any other sexual acts occurred, but the defence located a prior statement to police where the complainant had claimed two incidents. The inconsistency led to acquittal.
- R v E.G. — Client was acquitted of sexual assault after a judge-alone Superior Court trial. The accused’s stepdaughter alleged sexual assault over a period of years approximately 15 years earlier. A key witness located by the defence testified that the complainant had frequently left her daughter in the accused’s care until he was charged. The judge was not satisfied that the sexual acts alleged had occurred.
- R v D.W. — The accused was acquitted by a jury of gross indecency and indecent assault (historic sexual assault). The defence won two pre-trial applications: a section 486.2 application opposing the Crown’s request to allow video-link testimony, and a section 276 application to cross-examine the complainant about prior sexual acts.
The Bottom Line
A sexual assault trial is a structured, multi-stage process with opportunities for the defence at every step. From the election of trial mode to pre-trial applications to cross-examination and closing argument, the outcome depends on thorough preparation, knowledge of the evidentiary rules, and effective advocacy.
If you are facing a sexual assault charge and your case is heading to trial, contact our office to discuss your defence. Understanding the process is the first step toward being prepared for it.