Sexual assault cases are very challenging for counsel by their very nature. But when the allegations of abuse span a time period that encompasses an accused person’s 18th birthday, these cases can become legally complex in surprising ways.
If an adult accused person is alleged to have sexually assaulted a victim the trial takes place in adult court. If the accused person was a young person at the time of the alleged assault, the trial takes place in youth court. This is the case even if the accused person is now 18 years of age, and the charges related to conduct that occurred many years in the past: see YCJA s. 14(5).
But what happens when the allegations are historical and cover repeated allegations of sexual assault? If the accused person’s 18th birthday falls in the time frame of the alleged abuse, this presents the Crown with some difficult decisions. It is usually the case that a single victim comes forward to say s/he was abused by the accused person repeatedly, over a time period involving several years.
A single trial encompassing both the youth and adult charges on one indictment is generally prohibited by law. That is because a youth justice court retains exclusive jurisdiction over youth cases and an adult court retains jurisdiction over adult cases. In Ontario, the youth justice court is the Ontario Court of Justice. In cases where the Crown proceeds by indictment, adult persons may elect trial in either the Ontario Court of Justice or the Superior Court of Justice. But regardless of which choice is made, that court is an adult criminal court for the purposes of the proceeding before it and does not have jurisdiction over youth court charges.
The Ontario Court of Appeal has ruled that a single court cannot try adult and youth criminal charges together, even when the same victim is testifying for the Crown in both cases: see R v P.M.C, 2016 ONCA 829. There is simply too much risk that the single judge will conflate adult and youth jurisdiction and the applicable legal principles that apply in each court. This may require a victim to testify multiple times (i.e. at least once in youth court and once in adult court) if the Crown pursues both sets of charges. It also raises a possible risk of inconsistent verdicts, if a judge in youth court comes to different conclusions about the strength of the evidence than the judge in adult court.
Thus, Crown counsel sometimes seek to limit the prosecution to the charge(s) in adult court, and invite the victim to nevertheless testify about everything that happened, including when the accused person was a young person. Is this relevant evidence admissible as part of the full context of the victim’s experience, or is it irrelevant or even barred by law as an adult court has no jurisdiction over what occurred when the accused was a young person?
In R v L.S., 2019 MBPC 6, Harvie J. had to rule on this question in adult criminal court. The accused was charged with multiple historical sexual assault related offences against his sister. The allegations spanned a multi-year time frame which covered the accused’s 18th birthday.
Crown counsel sought to have s to have the complainant testify at trial about the facts which underlie the youth allegations, and took the position such evidence was admissible as part of the narrative in order to allow the Court to properly assess the credibility of the complainant. Defence counsel argued, inter alia, that the Court did not have jurisdiction to hear the allegations involving the youth matters as those are within the sole jurisdiction of the youth court.
Harvie J. ruled in favour of the Crown. The evidence was not being tendered by the Crown for the purposes of establishing the guilt of the accused on matters which would have to be tried by a youth justice court. Rather, it was for narrative purposes only. As such, YCJA s. 14 did not present a statutory bar to the adult court receiving the evidence. See also R v D.C., 2018 ONSC 1863.
Counsel should approach all cases involving historical allegations carefully. As this case demonstrates, youth and adult criminal court exercise different jurisdiction. If Crown or defence counsel wishes to introduce evidence extraneous to the dates on the indictment, it should be made clear to the court on what basis and for what purpose. Confusing the jurisdiction of the two courts can lead to review on appeal.