Abuse of an older adult can be a crime in many circumstances. The following section explains what needs to be done, the possible outcomes when you report the abuse, and if the alleged abuser is charged under criminal law.
The first step is to make a report to the police. Anyone can report an incident of abuse of older adults to the police wherever it occurs. For more information, see Getting the Police Involved.
- Types of Criminal Offences
- Going to Court: an Introduction to the Courtroom
- The Structure of a Trial
- Giving Evidence
- Possible Outcomes of a Trial
Types of Criminal Offences
These kinds of offences can only be tried in Provincial Court and include most minor offences in the Criminal Code. For example: unlawful assembly.
These kinds of offences carry more severe penalties than summary offences. Examples include: murder, manslaughter, and aggravated assault.
When someone is charged with an indictable offence, he or she can choose to be tried either before the Provincial Court or in Queen’s Bench. For certain crimes tried in Queen’s Bench, the accused may also be able to choose trial with, or trial without a jury (judge alone). 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. As a result, it is possible that a witness will have to give evidence twice (once at 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.
Summary or Indictable (“hybrid”) offences
Some cases can be tried as either a summary or an indictable offence. For these 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 or by Queen’s Bench. For certain crimes tried in Queen’s Bench, the accused may also be able to choose trial with, or trial without a jury (judge alone). 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.
Going to Court: an Introduction to the Courtroom
There are often many people in a courtroom. Knowing who is who, what each person’s role is, and what is expected of you as a witness should help you understand what is going on around you.
Who is in the Courtroom?
Clerk of the Court: the Judge’s Assistant
says “all rise” when the judge enters the courtroom
will ask the witness to take an oath or to make an affirmation promising to tell the truth
calls witnesses by name to take the stand and asks them to give their full name for the court reporter to record it properly
Court Reporter: sits in front of courtroom near the judge
records (usually via computer) everything that people say while the trial is going on
Crown Prosecutor: acts as the defender of society, not as the witness’s lawyer. The accused is seen as someone who may have committed a crime against the values of society. Thus, the Crown Prosecutor defends society’s values. (You will also hear the Crown Prosecutor called the Crown or the Prosecutor. These terms mean the same thing.)
Defence Counsel: a person who works for the person accused of breaking the law. The job of the defence counsel is to question witnesses when the Crown Prosecutor has finished questioning witneses, test the credibility of each witness’ evidence, and mat try to find out if a witness is confused or making things up.
Judge: also known as “Your Honour,” “Your Lordship,” “My Lord,” or “My Lady.” The Judge will listen to everyone’s story so that they understand the entire situation. The Judge decides on the appropriate sentence when the accused is found guilty.If there is no jury, they will decide if the accused is guilty or not guilty.
Jury: may or may not be there depending on the nature of the crime and the decision of the accused.
- Composed of 12 adult Canadian citizens, men and women, selected for jury duty
- Acts as “finder of fact”
- Makes a decision independently. Jury verdicts must be unanimous for the court to act.
Security Guard: maintains a safe environment in the courtroom; wears a uniform that looks similar to a police officer’s uniform.
Witness: A witness is called to give evidence in court in order to discover the truth. It is important that you answer honestly.
- You may be called as a witness because you have valuable information about the case. Your contribution is important so that the courts can make a fair decision.
- A witness is subpoenaed by the court. A subpoena is a court order that requires or compels a witness to attend.
- Witnesses are not expected to be experts in court process. They are expected to tell what they saw or know.
For Tips and Things to Consider when acting as a Witness, see 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: being “competent” and being “compellable”, that is, forced to give evidence when called by a subpoena.
Being competent to give evidence refers to various matters. For example:
- Being able to respond rationally to questions about the facts in issue
- Being able to communicate the evidence and give an intelligible account of events witnessed or perceived (this includes the ability to have perceived it in the first place and the ability to recollect)
- Being able to understand the moral obligation to tell the truth in court
Being compellable to give evidence means that it must be possible to force the person to give evidence when she or he is called by a subpoena. They can be forced because failure to comply with a subpoena can lead to prosecution for contempt of court.
Although most witnesses are compellable, this is not always the case.
Example: spouses. Special and complicated rules apply with regard to a husband or wife giving evidence for or against the other.A husband or wife is able, but cannot be forced, to give evidence for the accused spouse, that is, in his or her defence. They are competent, but not compellable.
With regard to giving evidence against a spouse, a spouse is competent (i.e., able to do that), but not compellable except in two instances. The two exceptions when a spouse can be forced to give evidence, even when they do not want to, are:
- Where the charge involves a threat to the person, liberty, or health of the spouse. This would include most cases involving physical abuse
- With regard to specific sections of the Criminal Code. These include: sexual offences, sexual offences in relation to children, abduction of children, various marriage offences such as bigamy, and the offence of failure to provide the necessities of life.
If there is any dispute whether a situation falls into one of these categories, a judge will decide that issue at the hearing. If, in either of these two situations, a spouse refused to give evidence against the other, that spouse would be at risk of being prosecuted for contempt of court.
Some tips if you are a Witness
- Arrive 15 minutes early and let the Crown Prosecutor know that you have arrived.
- Once the case begins, all the witnesses will be instructed to leave the courtroom. This is called an order of exclusion.
- If you are asked to leave the courtroom make sure that you stay just outside the courtroom so that you are easy to find when it is your turn to testify.
- The Crown Prosecutor will call a witness first; then the defence will call its first witness.
- You may be the first one called to testify.
- The accused may plead guilty before or during the proceedings.
- The court may be delayed for a number of reasons; you may ask the Crown why.
Things to Remember when Testifying as a Witness
- If you do not know the answer to a question you should not try to guess. Say “I do not know” or “I do not remember”.
- If you do not understand a question, ask for it to be rephrased. Speak clearly and loudly.
- You must always respond verbally. The court records only verbal responses. When saying yes or no, you must use those words rather than nod or shake your head.
- Do not discuss your testimony with others. You may discuss your case with the Crown Prosecutor and police, but no one else.
- If you make a mistake, let the Crown Prosecutor know.
- It is recommended that you look your best when testifying.
- You will be required to take an oath. If for religious reasons you can not, let the Crown Prosecutor know in advance.\
- You have a right to review your police statement before you testify. If you do not have a copy, you can obtain one from the Crown Prosecutor.
- It is okay for you to ask for something you need, for example, tissues, glass of water, or use of the washrooms.
- It is the defense lawyer’s responsibility to ask many questions to determine the accuracy of your testimony. This is called cross-examination. The defense lawyer might suggest something that you, the witness, partially agree or disagree with. You can explain to the judge which part(s) you agree and disagree with. Try not to get too distressed if it sounds like you are not being believed.
The Structure of a Trial
Whether the trial is held in a lower court (such as the Provincial Court of Alberta) or in a higher court (such as the Alberta 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 necessary 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 with 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 call witnesses, including the accused, to try to establish that the accused is not guilty.
Again, all witnesses are questioned by both sides. 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.
Both sides can also call “expert witnesses” of any kind to give evidence, providing that the appropriate notice has been given to the other side. Expert witnesses are witness who, because of their education, training, skill, or experience, are believed to have knowledge in a particular subject beyond that of the average person; so much so that others may officially (and legally) rely upon that knowledge.
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.
NB: The names of the various levels of court described above are the names of courts in Alberta. Courts in other jurisdictions may have different names.
Possible Outcomes of a Trial
It can be worrisome for an older adult to become involved in criminal proceedings against an abuser. There can, however, be positive aspects to taking the steps of having an abuser charged with a criminal offence.
- Being charged with a criminal offence will hopefully deter the offender from continuing to abuse you.
- If a person is arrested with a warrant and is released on bail pending a court appearance, the police can order him or her not to go near or communicate with you (a No Contact Order). If an accused breaks a no contact order, he or she might be kept in custody.
- If the offender is convicted and imprisoned, he or she will be removed from your life for an established length of time
- If an accused person is convicted by the court, you can file a victim impact statement for the court to take into account when sentencing the offender. The statement has to be written and filed with the court. The statement can include details about how the offence has affected you emotionally and financially. Victims’ Services can help you with this task.
- At the time of sentencing, you can also ask the court to order the offender to pay restitution or compensation to you for losses suffered as a result of the crime. Restitution can include losses such as stolen property, lost wages, or moving costs. The request has to be made by the prosecutor before the court sentences an offender. It is therefore important to give the prosecutor all the necessary information.
Under the Victims of Crime Act (Alberta), some victims of certain crimes can apply to the Director appointed for financial benefits for injuries or death. These benefits are payable if injury or death was suffered as a result of certain offences under the Criminal Code (such as assault, sexual assault, failure to provide the necessities of life, causing bodily harm, murder, and manslaughter).
The alleged offender does not have to be convicted of a crime in order for the victim to be able to make an application under the Act. However, the crime must have been reported within a reasonable amount of time after it happened and the application for benefits must be made within two years from the time of injury or death. The Director is able to extend the time for making a claim if s/he feels it is appropriate.
Under this scheme, there are no benefits for financial or property loss. In addition, not everyone is eligible to apply. For example, a person who is a dependant of the accused may not apply for benefits, unless that person is also a dependent of someone else who was a victim of the crime (therefore a dependant who was injured by his or her spouse may not be able to apply for benefits). For more information on the Victims of Crime Act (Alberta), see More Information.
Another statute of Alberta, called the Victims Restitution and Compensation Payment Act sets up a scheme whereby the government can take steps to recover property alleged to have been acquired by an illegal act. It allows a “Civil Forfeiture Office” to ask the court to seize property acquired illegally as well as property used to carry out illegal acts. Again, the alleged offender does not yet have to be convicted of a crime in order for the victim to be able to make an application under the Act (but there must have been an investigation).