New Alberta court procedure for sexual assault complainants aimed at reducing delay, lawyer says

Law360 Canada (February 12, 2021, 9:23 AM EST) -- A lawyer with Alberta’s legal aid service says a procedure recently put into place to help complainants in sexual assault cases navigate the legal system has been set up to help people in what is a very difficult time in their lives.

Under Canadian law, if a lawyer wants to tell a jury about a complainant’s sexual history or medical records they have to task a judge for permission to do so. The previous system in Alberta was said to be complex and time consuming, with the judge required to issue a court order to connect a complainant with a lawyer which could lead to delay.

As a result of these concerns, Legal Aid Alberta (LAA) had discussions with the Alberta Crown Prosecution Service to develop the new system, which involves a prosecutor filling out a referral form from the complainant and then coming directly to legal aid. LAA senior advisory counsel Danny Lynn said the rules of evidence in a sexual assault trial are “particularly complex” when dealing with a complainant’s prior sexual history.   

“It is very personal and there are questions as to whether they are actually relevant to the case at hand,” he said. “And that is why under the Criminal Code you have to make an application before they can call that kind of evidence and why the Code allows the complainant to have independent legal counsel to address that issue of relevancy.”

The new procedure bypasses the need for a court order, said Lynn.

“Since Jordan has come out everyone is concerned about unreasonable delay,” said Lynn. “We have identified roster members who are willing to take on these matters — it is kind of a niche area of law. Appointing counsel can be done relatively quickly, and that negates delay in the trial and gets the matter back on course much more quickly than before.”

Complainants then receive up to 10 hours of free legal advice and support. Legal Aid Alberta has chosen to make this service available to every complainant in a sexual assault prosecution in the province who has to respond to one of these requests, regardless of their financial circumstances.

“We’re helping people navigate a very difficult moment in their lives,” said Lynn. “Our goal is to ensure the criminal justice system remains fair for everyone.”

A common misconception among many people is that the Crown counsel also serves as lawyer for the witnesses, said Lynn.

“They are not — the Crown represents the state and the defence counsel represents the accused,” he said. “So, there is no one there to represent the privacy interests of a complainant in a sexual assault case other than through the process that exists right now.”

More information about Legal Aid Alberta can be found here.

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