- Editors (written by Kasia Kieloch)
Book Review- Prosecuting and Defending Sexual Offence Cases: A Practitioner’s Handbook
Daniel Brown and Jill Witkin’s “Prosecuting and Defending Sexual Offence Cases: A Practitioner’s Handbook” (1) provides a detailed overview of all aspects of sexual assault cases through prosecutor and defence perspectives. Daniel Brown is lead counsel at Daniel Brown Law and practices criminal, constitutional, and regulatory law. He has appeared before all levels of court in Ontario as well as the Supreme Court of Canada. Jill Witkin is a Crown Attorney in Ontario. She does trial and appellate work on cases relating to sexual assault and domestic and child abuse. Brian H. Greenspan and Justice Vincenzo Rondinelli and are amongst the foremost criminal law experts in Canada and are editors of this book series. The authors and editorial team have extensive criminal law experience related to sexual offence cases.
The handbook brings together the topics of criminal law, evidence, criminal procedure, and the Charter (2) to walk through all aspects of sexual offence cases from the first contact with prosecution and defence counsel to sentencing. It leaves readers with a complete understanding of how the various pieces of the criminal law system fit in with and apply to sexual offence cases. By comparing and contrasting the roles and tasks of the prosecution and defence, the work provides for a more holistic understanding of how sexual offence cases are to be handled.
Sexual offence cases are particularly difficult to prosecute and defend due to their intricate legal issues and requirement of fact-specific application of the law. Evidentiary rules for sexual offence cases are unique, making it essential for prosecution and defence counsel to have a clear understanding of the law of evidence and the anatomy of sexual assault cases in order for a trial to run smoothly. The book’s preface discusses how the role of the Crown is to pursue convictions and justice, while the role of the defence is to defend their client vigorously; yet each must work within ethical boundaries. There is no discussion of winning or losing, which is a common perception that seems to be (often wrongly) affiliated with the justice system and roles of lawyers.
The book’s first chapter discusses initial considerations for the Crown and defence. A Crown’s preparation for a sexual offence case begins at the bail stage. They need to consider factors such as bail release conditions, publication bans, victim notification, reasonable prospects of conviction, the public interest, and third party records. Included was a description of how a Crown can discuss the criminal justice system’s process and procedures with victims. On the defence side, there are many considerations for preparing a sexual offence case including locating and preserving evidence, having contact with the client prior to surrender or after his or her arrest, and educating the client. Chapter two breaks down the types of sexual offences and their defences and sentencing ranges.
The book provides ample discussion on DNA evidence and informational privacy. It covers publication bans and where they can be applied at various stages of proceedings. Chapter 5 discusses the 2015 Canadian Victims Bill of Rights (3) and the various protections for victims and witnesses within it. Preparing victims to testify is reviewed as well as the many ways to assist them, such as allowing them to testify without seeing the accused. Children’s evidence is considered separately from adult evidence because of the various provisions that differ for children. A useful chart is included on how to convert legal language to simple language for children, which can also apply to adults.
The book supplements its discussion of prosecuting and defending sexual offence cases by referencing influential case law in footnotes. Most of the discussion is based on the legal principles being practiced rather than explaining the theoretical aspects of the law. The chapter on s. 276 of the Criminal Code (4) regarding evidence of other sexual activity is an exception where several notable cases are unpacked and which reveals situations in which s. 276 applications have succeeded or failed. The chapter also includes an historic overview of rape shield law and the specifics of when s. 276 applications should be made and how they are decided.
The chapter on sentencing covers available sentences for many types of offences and considers mandatory minimum sentences, conditional sentences, and awarding the dangerous or long-term offender status, followed by their application to sexual assault offences. A chart is included that outlines sentences and other ancillary orders for each type of sexual offence. The chart usefully compiles all of the considerations and exceptions that relate to sentencing for sexual offences and presents numerous sections of Criminal Code in a clear manner.
The last chapter of the book discusses representing the victim in a sexual assault proceeding. It covers youth clients, how to deal with reluctant witnesses, and barriers to representation. The relationship between the Crown, counsel, and the victim are each discussed. It is easy for disputes to arise between the three parties because they may not all see eye to eye. It is important for the Crown and victim’s counsel to work together to prevent weakening the Crown’s case and strengthening the case of the defence.
The handbook provides the reader with a better understanding of sexual offence cases, and the roles of the Crown and defence counsel. Aspects of sexual assault cases are often discussed separately in law school, and sometimes across multiple courses and semesters, which makes it difficult to comprehend how all the complex pieces fit together in practice. For example, an introductory criminal law class will discuss what sexual assault is, but it will not discuss evidentiary principles and the complexity of sentencing factors. A class on evidence likely will not include a discussion on how to prepare a victim to testify about the key evidentiary information that they have provided. The book helps one build on rudimentary legal education and aids in understanding the individual components of sexual offence cases and pieces them together to provide a comprehensive picture of the practice realities of these difficult cases.
The book is immaculately organized, making it easy to brush up on a specific aspect of the law without having to read a whole chapter. This is useful for the practitioner who may need to brush up on critical gaps of knowledge. The book’s sections are concise and this serves to deliver, in precise terms, essential information on the topic at hand. The authors should be commended for the language used in the book: it is simple, straightforward and is inviting for non-lawyers to read. Including samples of forms, for example, in the context of victim impact statements, provides an understanding of the various technical matters that must be included and allows counsel to inform their clients on how to maximize the effect of the statement.
“Prosecuting and Defending Sexual Offence Cases: A Practitioner’s Handbook” is an essential source for explaining sexual offences and the various aspects involved in prosecuting and defending them. It should be considered a required text for any criminal lawyer who deals with sexual offence cases and is a useful resource for law students and interested laypersons. The handbook puts legal theory into every day practice. It is recommended as a “must have” for any lawyer, student-at-law or reader interested in this very challenging area of criminal practice.
Review prepared by Kasia Kieloch
1 Daniel Brown & Jill Witkin, Prosecuting and Defending Sexual Offence Cases: A Practitioner’s Handbook, eds Brian H Greenspan & Vincenzo Rondinelli (Toronto: Emond, 2017).
2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act (UK), 1982, c 11.
3 Canadian Victims Bill of Rights, SC 2015, c 13, s 2.
4 Criminal Code, RSC 1985, c C-46, s 276.