A sexual assault case can take a significant amount of time to move from charge to verdict. Understanding the steps along the way can help clarify the process and support better decision-making at each stage.
This post outlines the typical progression of a sexual assault case in Canada from start to finish.
Step 1: Investigation and Arrest
A sexual assault case begins when a complainant reports the alleged offence to police. The investigation typically includes a video-recorded statement from the complainant, interviews with witnesses, collection of physical evidence, and, where appropriate, a Sexual Assault Evidence Kit if the report is made shortly after the alleged incident.
Police then determine whether to arrest the accused. An arrest may occur at the scene, later in the investigation after further evidence is gathered, or not at all. In some cases, the accused is instead required to attend court by summons or appearance notice.
Step 2: Bail
After arrest, the accused has the right to a bail hearing within 24 hours, subject to limited exceptions. The bail hearing determines whether the accused will be released pending trial and, if so, under what conditions.
In sexual assault cases, the Crown commonly seeks conditions such as:
- No contact with the complainant or witnesses
- Geographic restrictions, such as staying away from the complainant’s home, school, or workplace
- Curfews or house arrest
- Sureties, who are people willing to supervise the accused and pledge money
- Reporting requirements to police or a bail supervisor
- Surrender of passports
The bail stage is one of the most significant early points in a criminal case. Conditions imposed at this stage can affect the accused’s daily life for months or even years while the case proceeds. Strong bail counsel matters.
Step 3: First Appearance and Crown Election
After bail, the accused appears in court for a first appearance. At this stage, the Crown formally decides how to proceed.
Sexual assault under section 271 is a hybrid offence. The Crown may proceed either by indictment, which is the more serious procedure, or by summary conviction, which is less serious. This election affects the maximum penalty, as well as procedural rights such as the availability of a preliminary inquiry and a jury trial.
Sexual assault with a weapon (section 272) and aggravated sexual assault (section 273) are indictable offences. There is no summary election available for these charges.
Step 4: Disclosure
The Crown begins providing disclosure to the defence. This includes police reports, witness statements, video recordings, and other materials required for the defence to understand and respond to the case. We have a separate post in this series on disclosure.
Disclosure is not a single event. Additional material is often provided throughout the pre-trial period as the investigation continues or new information comes to light. The defence tracks what has been received, identifies what is missing, and follows up on outstanding material as needed.
Step 5: Preliminary Inquiry
For some indictable offences, the accused has the right to a preliminary inquiry. This is a court hearing where a judge determines whether there is sufficient evidence to commit the accused to trial. The threshold is low. In practice, the hearing is often used to test aspects of the Crown’s case and identify issues before trial.
Recent amendments to the Criminal Code have limited the availability of preliminary inquiries. Sexual assault charges that carry a maximum sentence of 14 years or more remain eligible. Less serious sexual assault charges may not qualify.
Step 6: Pre-Trial Conferences
Once the case is set down for trial, the parties attend pre-trial conferences. These are meetings between the Crown, defence, and a judge to set timelines, identify issues, and try to narrow what will be in dispute at trial.
In a sexual assault case, pre-trial conferences often address:
- The expected length of the trial
- Outstanding disclosure issues
- Whether the defence intends to bring section 276, 278, or 278.92 applications
- Whether there are witnesses with special needs, such as testimonial accommodations, and
- Whether the trial will be in front of a judge alone or with a jury
Step 7: Pre-Trial Applications
This is where sexual assault cases often differ most from other criminal proceedings. Before trial, the parties bring applications that can significantly shape how the case is ultimately heard:
- Section 276 applications: dealing with evidence of the complainant’s other sexual activity
- Section 278 applications: dealing with access to third-party records
- Section 278.92 applications: dealing with records already in the defence’s possession
- Charter applications: such as challenges to statements made to police or the legality of searches
- Applications about expert evidence: including proposed testimony on issues such as memory or trauma
Each application is governed by its own rules, timelines, and procedures. A significant portion of the legal and strategic preparation in a sexual assault case takes place at this stage.
Step 8: Trial
Most sexual assault trials are tried by a judge alone. In indictable cases, the accused may elect trial by judge and jury.
A typical sexual assault trial proceeds in this order:
- Crown opening: The Crown gives an opening address outlining the case it intends to prove
- Crown evidence: The Crown calls its witnesses, typically beginning with the complainant, followed by police officers, forensic experts, and other relevant witnesses
- Defence motion or evidence: After the Crown closes its case, the defence may bring a motion for a directed verdict or call evidence. The accused has the right not to testify, and that decision is made by the accused on the advice of counsel
- Closing submissions: Both sides make submissions on what the evidence shows and how the law applies
- Decision: The judge or jury delivers a verdict. In a judge-alone trial, the judge provides written or oral reasons
Step 9: Sentencing or Acquittal
If the accused is acquitted, the case ends, subject to the Crown’s right of appeal in some circumstances.
If the accused is convicted, the matter proceeds to sentencing. The sentencing hearing typically takes place weeks or months after the verdict. Both sides file written submissions, and the accused may address the court. The judge then imposes a sentence. We have a separate post in this series on sentencing in this series.
Timelines
Sexual assault cases vary widely in length. A simple case may proceed from charge to trial in eight to twelve months. More complex matters involving multiple pre-trial applications can take two years or longer.
In R v Jordan, the Supreme Court of Canada established presumptive ceilings on the time it should take to complete a criminal case. These ceilings are not rigid rules, but they are binding thresholds that may lead to a stay of proceedings if exceeded without justification.
How Counsel Helps at Each Step
Each stage of the process involves its own decisions, deadlines, and risks. Bail conditions may need to be revisited, disclosure issues can be raised and litigated, and pre-trial applications often turn on the quality of the written materials filed. Trial strategy is developed over months of preparation.
Counsel who regularly work in this area understand where the key issues arise and how each stage can affect the overall case.
Need to understand your sexual assault case?
Every case is different. Contact us to talk about where your case stands and what to expect at each step.
