Annex A - Recommendations

Our Big 10 Recommendations

1. Fully investigate sexual violence
2. Minimize harm from R v. Jordan
3. Better protect therapeutic records
4. Humanize cross-examination
5. Offer testimonial aids automatically
6. Provide effective rights and representation
7. Stop redacting victim impact statements
8. Prioritize access to services
9. Allow restorative justice options
10. Collect (better) data for accountability

Detailed Recommendations

1 Reporting and Investigations

1.1 Implement the Calls for Justice from the National Inquiry into Missing and Murdered Indigenous Women and Girls to improve policing and investigative practices:

a. Ensure equitable access to traumainformed practice and investigative tools such as sexual assault evidence kits in all communities, including rural, remote and northern regions, in line with Call for Justice 5.5.

b. Embed Indigenous-led oversight and accountability in policing responses to sexual violence, ensuring culturally safe practices that respect Indigenous legal traditions and self-determination, in line with Calls for Justice 9.1 and 9.2.

c. Invest in Indigenous-led, community-based victim services to support survivors through reporting and investigation processes, in line with Calls for Justice 5.6, 16.29, and 17.28.

1.2 Evaluate trauma-informed protocols for police investigations. External monitoring promotes accountability and accessibility for equity-seeking groups.

1.3 Provide ongoing training to criminal justice actors on the unique needs of survivors based on sex, gender, sexual orientation, race, culture, religion, age, ability, mental health, immigration status, income and access to housing, with attention to intersecting identities.

1.4 Stop using KGB cautions with survivors of sexual violence. These warnings treat survivors like suspects based on the myth that survivors of sexual violence are more likely to lie.

1.5 Address the invisibility of Black survivors in research on the criminal justice system. The federal government should invest in Black-led, community-based research on the experiences of Black women, girls, and gender-diverse people affected by genderbased violence, including sexual violence.

2 R v. Jordan

The federal government should amend the Criminal Code to:

2.1 Guide judicial discretion in delay motions. Set out the following criteria to be considered by the Court in a Jordan motion (a motion to stay the charges for a lack of timely prosecution):

a. Nature and gravity of the alleged charges

b. Length of the delay

c. Complexity of the case

d. Vulnerability of the victims

e. Actions of defence

f. Actions of prosecution

g. Society’s interest in encouraging the reporting of offences and the participation of victims and witnesses

h. Prejudice to the victims’ Charter rights

i. Exceptional circumstances

j. Other factors including local conditions

2.2 Set consequences for defence delay: Provide that Crown can show that multiple contested procedural applications will count as defence delay if the applications have been found to be brought without adequate notice, frivolous, without basis, involve unnecessary argumentation, or show a failure to prepare.

2.3 Remedy for excessive prosecution delay: Where the Court finds there has been excessive delay in the prosecution of a case, upon conviction, these charges could receive a sentencing credit for days past the Jordan timelines, preserving judicial discretion to grant stays of charges for egregious or exceptional cases.

2.4 Ensure victims are informed of delay applications: When a Jordan application is filed under s. 11(b) of the Charter, the victim must be notified.

2.5 Protect victim safety in remedy decisions: Where a Court finds that there has been excessive delay and orders a stay, and where the charge relates to a violent offence, the Court must consider the victim’s safety concerns when releasing the accused.

3 Therapeutic Records

3.1 Invest in independent legal advice (ILA) and independent legal representation (ILR) The federal government should immediately invest in independent legal advice (ILA) and independent legal representation (ILR) programs for any proceeding where a survivor’s CVBR or Charter rights are engaged. This includes for sexual history, record production and record admissibility applications.

The federal government should immediately amend the Criminal Code to:

3.2 Protect therapeutic records: Recognize that psychiatric, therapeutic and counselling records as enumerated in s. 278.1 are distinct from other private records and should be the subject of a higher threshold to be accessed by the defence. Apply the “innocence at stake” threshold or “class protection” to Stage One of both private records regimes, given the highly prejudicial impact on the health, equality and safety of survivors during a time of predictable distress.

3.3 Add context disclaimers: Provide that, when used as evidence, any disclosure of a therapeutic record shall include a disclaimer that the contents are based on the therapist's impressions, have not met the privacy requirements of allowing the complainant to review and correct inaccuracies, and may contain factual errors.

3.4 Expand the definition of ‘record’: Amend the definition of a record in s. 278.1 of the Criminal Code to:

(a) Include electronic data found on a phone device or internet-based account for the purposes of the private records regimes

(b) Include the contents and results of a sexual assault examination kit (SAEK).

(c) Provide participation rights and standing for complainants where a motion for direction on the definition of a record engages the privacy interests of complainants.

3.5 Clarify the express waiver provision: Amend the express waiver provision for third party records (s. 278.2) to create an exception, where the Crown intends to adduce private records and cannot obtain the complainant’s express waiver, records can be disclosed to the defence without an express waiver.

3.6 Simplify applications of sexual non-activity: Create a simplified statutory regime for the complainant’s evidence of sexual non-activity and sexual activity when presented by the Crown.

3.7 Expand regime coverage: Include sex trafficking and voyeurism in all the records regimes.

4 Cross-Examination

Preliminary Inquiries

4.1 Eliminate preliminary inquiries: The federal government should amend the Criminal Code to remove preliminary inquires for all sexual offences, protecting children and vulnerable complainants from the harm of multiple cross-examinations.

Cross-Examinations

4.2 Review trial procedures to enhance trauma-informed and culturally safe practice: The federal government should review and amend the Criminal Code to increase trauma-informed practice for all trials. Trauma-informed practice should include accessibility for people with disabilities and culturally safe, Indigenous-specific supports, such as dedicated Indigenous survivor advocates.

4.3 Develop a national justice strategy to protect children and youth: The federal government should consider a coordinated national strategy to uphold the dignity and safety of all children and youth who have experienced sexual violence. This strategy could include national standardization of forensic interview protocols, mandatory training for interviewers, national training standards, and universal access to child and youth advocacy centres.

5 Testimonial Aids

The federal government should amend the Criminal Code to increase access to testimonial aids:

Option 1: Administrative approach

5.1 Treat testimonial aids for sexual offences as an administrative matter that does not require a hearing to be awarded, based on the presumptions that sexual offence proceedings create a high likelihood of retraumatization. Testimonial accommodations for victims support the truth-seeking function of the court.

Option 2: Rebuttable Presumption

5.2 (a) Create a rebuttable presumption for testimonial aids for adult victims of sexual offences.

(b) Require the Court to inquire if a victim has been offered or requested testimonial aids.

(c) Provide that, where a judge decides that a defence’s objection to testimonial aids was frivolous or made in bad faith, the time used to contest the application for a testimonial aid will be attributed as defence delay for the purposes of a Jordan application.

(d) Provide that, where the judge decides not to order testimonial aids, they must provide written reasons. 

Additional provisions

5.3 Clarify that victims and witnesses may access multiple testimonial aids at the same time.

5.4 Add support dogs as a testimonial aid.

5.5 Clarify that the use of video testimony (s 486.2) outside the courtroom also means outside the courthouse.

5.6 [If preliminary hearings are not eliminated] provide that any testimonial aids used at a preliminary inquiry are automatically granted for a trial.

Amendment to the CVBR

5.7 The federal government should amend the CVBR to set out that victims have a right to testimonial aids (currently it is a right to request testimonial aids).

6 Victim Impact Statements, Sentencing, and Corrections

Victim Impact Statements

6.1 Prevent early disclosure: The federal government should amend the Criminal Code to provide that a victim impact statement (VIS) is not given to the Crown or the defence until there is a finding of guilt, so it is not subject to disclosure and cross-examination prior to sentencing.

Federal Corrections and Parole

6.2 Allow partial summaries of victims statements: The federal government should amend the Corrections and Conditional Release Act (CCRA) to allow victims to request that offenders in federal custody receive a partial summary of their victim statement, limiting details of emotional or psychological harm, while still providing full details on any conditions requested when a statement is used by the Correction Service of Canada (CSC) or Parole Board of Canada (PBC) for decision-making. The victim should be provided with the summary and with the ability to remove any personal or other information that affects their safety.

6.3 Properly investigate complaints: The federal government should amend the Corrections and Conditional Release Act (CCRA) to provide that the Federal Ombudsperson for Victims of Crime (OFOVC) shall receive, upon request, any document, recording, paper, or information relevant to a complaint made by a victim.

7 Restorative and Transformative Justice

7.1 Review restrictive policies: The federal government should, in collaboration with provincial and territorial governments, review policies that prohibit the use of restorative justice models for sexual violence and exchange knowledge on promising practices already used in parts of Canada.

7.2 Expand and stabilize funding for restorative and transformative justice: The federal government should explore joint funding models with provinces and territories to provide adequate and sustained funding to support restorative justice programs and other alternatives to the criminal justice system, such as transformative justice.

7.3 Proactively inform survivors: The federal government should amend the Canadian Victims Bill of Rights to require that victims are automatically informed of available restorative justice programs.

8 Legal Representation and Enforceable Rights

8.1 Fund legal representation when victims’ rights are at stake: The federal government should continue to fund Independent Legal Advice (ILA) and Independent Legal Representation (ILR) programs whenever a victims’ Charter or CVBR rights are engaged within the criminal justice system. This includes for testimonial aids applications, records applications, preparation of victim impact statements, and parole hearings.

8.2 Provide information proactively: The federal government should immediately amend the Canadian Victims Bill of Rights (CVBR) to remove “on request” from victims’ rights to information.

8.3 Create meaningful enforcement powers: The federal government should immediately amend the Canadian Victims Bill of Rights (CVBR) to allow victims to challenge violations to their rights by creating standing, appeal rights and a remedy from federal agencies in order to allow victims to challenge violations of their rights.

8.4 Show CVBR consistency in proposed legislation: The federal government should immediately amend the Department of Justice Act to require that the Minister examine every Bill to ascertain whether any of the provisions are inconsistent with the purposes and provisions of the Canadian Victims Bill of Rights and report any inconsistency to the House of Commons at the first convenient opportunity.

8.5 Show CVBR implementation in proposed legislation: The federal government should immediately amend the Department of Justice Act to require that the Minister of Justice shall table, for every Bill introduced in or presented to either House of Parliament by a minister or other representative of the Crown, a statement that sets out potential effects of the Bill on the rights that are guaranteed by the Canadian Victims Bill of Rights.

8.6 Clarify analysis of Charter rights of victims of crime: The federal government should amend the Department of Justice Act to require that Charter Statements include analysis of how legislation may affect the rights of victims of crime under the Canadian Charter of Rights and Freedoms.

9 Access to Services

9.1 Guarantee a right to assistance: The federal government should amend the Canadian Victims Bill of Rights (CVBR) to add a “right to assistance.”

9.2 Provide independent survivor advocate: The federal government should provide sustained operating funding to sexual assault centres to support access to independent, community-based survivor advocates. It should also fund Indigenous-led survivor advocate programs that reflect the needs of Indigenous communities.

9.3 Sustain Child and Youth Advocacy Centres: The federal government should establish funding partnerships with the provincial and territorial governments to ensure that Child and Youth Advocacy Centres (CYACs) are available in every region in Canada.

10 Data and Accountability

10.1 Establish a national data strategy: The federal government should develop and implement a coordinated, multi-jurisdictional data strategy to improve the collection, sharing, and analysis of outcomes-based data on sexual violence.