If you are a complainant in a sexual assault case, the criminal trial process can feel as though it is proceeding around you rather than with you. The Crown represents the public interest, not the complainant’s personal legal interests, and the defence represents the accused. In certain circumstances, a complainant may have independent legal interests that arise during the proceedings. At those points, the complainant may be entitled to obtain their own legal counsel.
This post explains the role of complainant counsel in Canadian sexual assault cases.
What Complainant Counsel Does
Complainant counsel is a lawyer who represents the complainant on specific legal issues that arise during a criminal proceeding. They are not part of the prosecution team. Their role is to advance and protect the complainant’s legal interests, particularly privacy and dignity interests.
Complainant counsel is typically involved when the defence brings applications that engage those interests, including:
- Section 276 applications: where the defence seeks to introduce evidence of the complainant’s sexual activity outside the alleged offence
- Section 278 applications: where the defence seeks access to private records such as therapy notes, school records, medical records, or similar material
- Section 278.92 applications: where the defence seeks to use records in its possession such as texts, emails, or photographs involving the complainant
In each of these situations, the law grants the complainant standing, meaning the right to participate in the process through their own lawyer.
Why You Have the Right to Counsel
Sexual assault trials engage privacy interests that go beyond those in most criminal cases. The records the defence seeks to access or use may contain highly sensitive personal information, including material shared with therapists, doctors, family members, or friends. The Supreme Court of Canada has recognized that complainants have a legally protected privacy interest in such records and in how they are used in court.
While the Crown acts in the public interest and prosecutes the case, it does not represent the complainant personally. In some situations, the Crown’s position and the complainant’s interests may not fully align, particularly in relation to the extent of private information disclosed in court.
Complainant counsel exists to address that gap.
What Complainant Counsel Can and Cannot Do
Complainant counsel can:
- Review the defence application and explain it to you in plain terms
- File written submissions opposing or limiting what the defence wants
- Make oral arguments at a closed hearing
- Cross-examine on the application if appropriate
- Negotiate redactions or limits on the use of records
- Advise you on whether to consent to proposed orders
- Help you understand what is happening at every stage of the application
Complainant counsel cannot:
- Prosecute the case (that is the Crown’s role)
- Decide what evidence the Crown calls or what witnesses are interviewed
- Speak for you on substantive issues at trial unrelated to your privacy interests
- Override the trial judge on rulings about your records
The role of the compliant counsel is focused on the moments where your legal interests need their own voice.
How to Access Complainant Counsel
Most provinces and territories in Canada have funded programs that provide legal advice or representation to sexual assault complainants in appropriate cases. The details vary by jurisdiction, but the general purpose is the same: to ensure complainants can obtain independent legal advice when their privacy interests are engaged in criminal proceedings.
For example, in Ontario, the Independent Legal Advice for Survivors of Sexual Assault program provides free legal advice to eligible complainants, and funded counsel may be available in matters involving section 276 or section 278 applications.
In British Columbia, Legal Aid BC provides representation in certain cases involving third-party records and other privacy-related applications.
Other provinces have similar services. In most cases, victim services agencies or the Crown attorney’s office can provide information about available programs. Complainants are often notified about the availability of complainant counsel when defence applications are filed.
The Process at a Glance
If the defence files an application that engages your privacy, here is how things typically unfold:
- You receive notice: The Crown or the court contacts you to let you know that an application has been filed
- You access counsel: Through legal aid or a similar program, you are connected with a lawyer who represents you on the application
- Your lawyer reviews the materials: Counsel reviews the defence application and supporting evidence and may meet with you to understand your position
- Submissions are filed: Your lawyer files written submissions setting out your position on the application
- The hearing is held: The hearing is closed to the public. Your lawyer makes oral arguments
- The judge decides: The judge issues a ruling on what evidence, if any, can be used at trial
In many cases, the application leads to negotiated outcomes. Your lawyer may agree to limited use of certain records or evidence in exchange for protections that you and the lawyer think are reasonable.
What This Means for You
If you are a complainant in a sexual assault case, your role is not limited to giving evidence at trial. You have legally protected interests in your privacy, your records, and your dignity, and in certain situations you may be entitled to independent legal representation to protect those interests. Understanding the role of complainant counsel can make the process easier to navigate.
If you are told that the defence is bringing an application, it is important to ask about complainant counsel as early as possible. Early involvement allows your lawyer more time to review the materials and respond effectively.
Are you a complainant facing a defence application?
If you have received notice of a section 276 or section 278 application, you may be entitled to your own lawyer at no cost. Contact us to talk about your options.
