Abuse of an older adult can be a crime in many circumstances. The following section explains what needs to be done and the possible outcomes when you report the abuse and have the alleged abuser charged using the criminal law procedure.
The first step to have criminal proceedings taken against an alleged abuser is to make a report to the police. There is no legal duty to report abuse of older adults to the authorities unless the person is in a hospital, senior's lodge, nursing home, or other facility that has government funding. Anyone can report an incident of abuse of older adults to the police wherever it occurs.
In order to charge someone with a criminal offence, the police have to be reasonably sure that a crime has been committed and that there is sufficient evidence of the crime. The police will investigate the matter. This will require talking to you. If the alleged abuser is charged with an offence you will have to give evidence in court, unless the accused pleads guilty.
The process The trial
Giving evidence
What could happen as a result of the criminal complaint?
The process
There are three types of criminal offences:
Indictable offences: These kinds of offences carry more severe penalties
than summary offences. Examples of offences that must be tried on indictment
are murder, manslaughter, and aggravated assault. When someone is charged with
an indictable offence, he or she can choose to be tried either before a Provincial
Court Judge alone or a Queen’s Bench Justice, with or without a jury.
In legal terms this is called “electing” for a particular mode
of trial.
If a person elects to have his or her case tried in Court of Queen’s Bench,
there first has to be a Preliminary Inquiry in Provincial Court. The Preliminary
Inquiry will determine if there is enough evidence for a trial. Witnesses
will have to give evidence at the Preliminary Inquiry. It is possible
that a witness in a case involving an indictable offence would have to give
evidence twice against the accused. One time would be in the Preliminary Inquiry
and the other time at trial. If the accused pleads guilty at any stage, it
would no longer be necessary to have to give evidence about the facts of the
case.
There is no right to trial by jury for the offences of theft under $5000,
mischief under $5000, fraud under $5000, or driving while disqualified.
Many criminal offences can be prosecuted either summarily or on indictment. These kinds
of offences are sometimes referred to as hybrid offences. The Crown will choose
whether the offence is tried summarily or on indictment. If the Crown proceeds
by way of indictment, the accused can then elect the mode of trial, either
by Provincial Court Judge or by Queen’s Bench Judge, with or without
a jury. Any case that is to be tried on indictment in the Court of Queen’s
Bench must first go through a Preliminary Inquiry in Provincial Court to ascertain
that there is enough evidence to go to trial.
Examples of hybrid offences include theft under $5000, uttering threats, and assault.
All of the criminal offences listed above carry penalties that can range
from a fine to a period of imprisonment.
The trial
Whether the trial is held in Provincial Court or Court of Queen’s Bench,
the format is essentially the same. The Prosecutor (lawyer for the prosecution/Crown) and the Defence Counsel (lawyer for the defence/accused) will
make opening statements. It is necessary for the prosecution to prove the
guilt of the accused. It is not for the defence to prove the innocence of the accused.
The prosecution will go first and call witnesses to try to establish
the guilt of the accused. Witnesses are first examined by the prosecution.
This means that they are asked questions by the lawyer for the prosecution
about the incident. Once this is done, the lawyer for the accused is able
to cross examine the witness. This procedure takes place for all witnesses
for the prosecution. When this is finished the defence can, if it feels it
is warranted, make a submission to the judge that the prosecution has not
made a case against the accused. The judge will consider this application
in the light of the evidence that has been heard. If the judge agrees, the
case could be dismissed at that point. If the judge feels there is a case
for the defence to answer, the matter will proceed.
The lawyer for the defence can then call witnesses, including the accused,
to try to establish that the accused is not guilty. The accused does not have
to give evidence. If the accused does give evidence, the prosecution will
be able to cross examine him or her, together with any other witnesses that
give evidence for the defence.
The prosecution or defence can also call expert witnesses of any kind to give
evidence, providing that the appropriate notice has been given to the other
side. When all the evidence has been heard, the lawyers for the prosecution
and the defence have an opportunity to make closing arguments to the judge
or judge and jury. If the trial is being held with a jury, the judge will give directions
on the law to the jury before they retire to consider the case.
Giving evidence
Abuse, particularly physical abuse, occurs most often in private. If the incident does take place in private, the criminal case can develop into the word of the abuser against the word of the victim. Other witnesses may be able to help if they have seen the victim with bruises after a physical attack. It can also help if a victim has kept a record of abuse.
For the purposes of giving evidence, there are two issues:
Complicated rules of evidence apply with regard to spouses giving evidence against each other. You are able to give evidence for an accused spouse to defend him or her, although you cannot be forced by subpoena to give evidence in their defence. There is more uncertainty about when a spouse can be made to give evidence against the other spouse in a situation of physical harm.
What could happen as a result of the criminal complaint?
It can be very difficult and emotional for an older adult to become involved in taking criminal proceedings against an abuser. There are agencies, for example, the Elizabeth Fry Society and the John Howard Society, that work with the courts to assist victims through the court process, give them support, and explain what is happening.
There are positive aspects to taking the steps of having an abuser charged with a criminal offence.
It is also possible for a Justice of the Peace to impose a no contact order on an accused when releasing him or her on bail. Since the prosecutor in charge of the case must ask the Justice to impose this condition, it is important to tell the prosecutor that this is something that should be requested. If an accused breaks a no contact order, he or she might be kept in custody.
Updated: October 17, 2003
2. offences that can only be tried on indictment
3. offences that can be tried either summarily or on indictment
Summary offences: These kinds of offences can only be tried in Provincial
Court and include the most minor offences in the Criminal Code, for example,
unlawful assembly is a summary offence. Trial in Provincial Court is before
a Provincial Court Judge.
Return to Using the Law ... Making a Criminal Complaint
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OAK-Net: Abuse of Older Adults
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