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Lecture 7

LAWS 3306 Lecture 7: LAWS 3306 Lecture 7

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Carleton University
LAWS 3306
Paolo Giancaterino

Friday, March 3, 2017 LAWS 3306 Lecture 7: Young Persons Introduction children were recognized as victims and potential victims with relations to sexual • crimes • before 1970s there were few court cases for abused children • but it sky rocketed in the 80s Sexual Abuse: Victims Rights and Crime Control • The Badgley Report (1984) - made headlines for the sensational stats that they produced - reported that 1 in 2 females, and 1 in 3 males were victims in unwanted sexual acts at some point in their lives - and that 4 in 5 of that 1/2, or 1/3 happened when they were youth (young persons) this was based on interviews with 2000 adults, most of these were not reported - a belief that young persons need to be protected from these - more victim sensitive criminal sanction — outcome of the Badgley report - the media joined this; need to focus on prevention, punishment and protection (3 P’s) - unfortunately what happens when dealing with punishment and protection you shift the value of the criminal prosecution from the victim towards the value of the community - committee recommended broad and tough criminal offences for child sex abuse for prostitution involving young persons and for pornography involving children - suggested changes to the criminal code to deal with the protection of young persons; example: creating gender neutral offences that statutory rape should be retained and expanded (age raise) because of the harms of teen pregnancy - wanted new creation of offences in order to prosecute accused people 1 Friday, March 3, 2017 - wanted reforms of evidentiary laws to eliminate traditional distrust of testimony of victims who are young - wanted changes to the Canadian evidence act to make every child regardless of his or her age competent to testify - wanted courts to allow hearsay evidence to be allowed more freely and easier by the prosecution - there were recommendations made that there should be strict restrictions on the names and information of the victim or the complainant - after the committee released this report was after the charter - needed to fight due process in court for the protection of children - unfortunately the Badgley committee used criminalization as the way to deal with young persons sex abuse without paying attention to what the victims actually wanted - interestingly enough about 33 % of surveyed victims wanted the government to provide further support instead of relying on the criminal sanction - had little concern on amending the Criminal Code • Legislative Response - in 1986 Bill C-15 is introduced by parliament and the ministry of justice in introducing this bill focused on the Badgley committee and how they thought to deal with abused youth - basis for Bill C-15 was that the criminal law had failed and they needed to be reformed to protect victims and potential victims - victim punitive aspect of the criminal law - Bill C-15 created new sexual offences - sexual interference; direct or indirect touching of someone underage as described by parliament - the offence of invitation of sexual touching; which tried to control the risk created by those who had tried to touch young persons or had young persons touch them but failed 2 Friday, March 3, 2017 - also an emphasis on criminal activities that involved the sexual exploitation by accused persons of those who are in their trust (example: teacher student) - Bill c-15 made it easier for children as witnesses or complainants to testify; abolished the requirement of corroboration (evidence that confirms or supports a statement, theory, or finding); abolished the requirement of recent complaint - changes to the criminal code allowing a young person to testify behind a screen at the trial or via TV - victims were now the new face of crime control and this new political case of accused due process rights vs rights of victims was characterized as being a war Evidence Counter-Revolution • - motivated by judicial attempts to facilitate the prosecution of child sex abuse cases - significant changes to the evidence - judges reformed the rules of hearsay through their decisions when dealing with young persons - when dealing with hearsay evidence; in order to be tested needs to be cross examined - SCC decision in Queen v Khan; SCC facilitated the prosecution allowed for a hearsay statement of a young victim that was made to their mother because they were not in the state to testify - hearsay has to be necessary and reliable - SCC in a number of their decisions abandoned the distrust of child testimony; that objective standards were required when dealing with youth - LDO (1993) decision by SCC • they upheld the amendments that were introduced in 1988 that allowed the introduction of video taped statements as evidence - so parliament as a part of this change to the rules of evidence allowed the crown to play a video tape statement of a young person; allowed them to play in court and as long as the young person that was present in court, adopted that statement and was present to be cross examined the crown no longer had to bring them through the full examination at chief 3 Friday, March 3, 2017 • Pre-Charge Delay Counter-Revolution - allowed courts to have cases proceed based on historical sexual allegations - 1991 the SCC LWK decision revered a stay of proceedings by the lower court because there was a delay in reporting - this delay was unreasonable and the charges should be stayed; court saw that sometimes it takes time to be able to report their crimes and to be involved with the criminal justice system - courts say that the date it happened and the date it is reported does not matter and is not a delay - limitation periods of prosecuting criminal offences: - if a matter proceeds summarily the crown has 6 months to lay the charge between the date it occurs and the date the information is laid - if the crown doesn't lay a charge within this time on a summary matter then they are barred from prosecuting the matter; but there are not to many straight summary matters but are hybrid (summary or indictment) so they will do the other if they are barred at one - if proceeding as indictment their is no limitation between laying the charge and the date it occurred Statutory Rape • - Badgley committee recommended that parliament make an absolute liability offence of having sex of someone the age 14 be retained - making prosecution act as a deterrent - the SCC strike down the law dealing with statutory rape being unconstitutional and said that when in a case like this where someone is potentially loosing their liberty that you allow them to have c
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