The tragic Rehtaeh Parsons case, which has been front-page news in Nova Scotia and throughout Canada, raises some of the most troubling questions in Canadian criminal law. In the Rehtaeh Parsons case there was an allegation that she was sexually assaulted by four young men and that a photograph of the incident was circulated over the internet. In her case, the police investigated the complaint of sexual assault and, after consultation with the Public Prosecution Service, decided not to lay any criminal charges. Subsequent to the sexual assault incident and the online circulation of the photograph allegedly taken during the incident, Ms. Parsons was bullied to the point where she took her own life. These are very tragic circumstances for her family, friends, and the community at large.

It is in this context that questions have been raised as to why the police did not lay charges against any of the four young men both in regard to the complaint of sexual assault and the circulation of a photograph on the internet which could be considered child pornography. The Rehtaeh Parsons media reports referred to the police investigation and a review of the investigation results by one or more Crown Attorneys before a decision was made not to proceed with criminal charges against any of the four young men involved.

In attempting to understand the Rehtaeh Parsons case it is important to be aware of the different roles the police and the Crown play in our justice system. It is the role of the police to investigate allegations of criminal offences and determine whether or not charges will be laid. The Crown in Nova Scotia does not decide whether criminal charges will be laid in any particular case. On some occasions the police will consult with a Crown Attorney to determine whether the evidence they have gathered in a particular case would justify proceeding with certain charges under the Criminal Code. What a Crown Attorney is usually determining is whether, based on the evidence presented by the police, the elements of a criminal offence are made out and whether there is a reasonable prospect of obtaining a conviction in a criminal court where the evidentiary burden is proof beyond a reasonable doubt. A Crown Attorney will likely have this discussion with the police investigator but, at the end of the day, the decision as to whether or not to lay a criminal charge remains with the police.

If the police do lay criminal charges, the Crown Attorney can later decide whether or not the evidence supports a reasonable prospect of conviction at a trial. If the evidence available to the Crown does not offer a reasonable prospect of conviction then the Crown Attorney has an obligation not to proceed with the prosecution. There are some situations where, even if there is a reasonable prospect of a conviction, the Crown will, nevertheless, decide not to prosecute because the prosecution may not be in the public interest. An example may be the case of an elderly accused who has no prior record who is charged with a very minor offence.

In sexual assault cases where the issue may be whether the complainant consented to the sexual activity, the police will collect evidence which may include statements from the complainant, other witnesses and, sometimes, statements from the alleged perpetrators which may collectively present a less than clear picture on the issue. If the evidence collected by the police is ambiguous on the issue of consent, the police may very well want to consult with a Crown Attorney to determine whether there is a reasonable prospect of a conviction should they lay a charge. It is important to note that consent to sexual activity is not simply a complainant stating “I did not consent” but can also be implied from the complainant’s actions and surrounding circumstances. Experienced criminal defence lawyers and Crown Attorneys who prosecute sexual assault cases run into this situation in some cases which can result in lengthy trials dealing almost entirely with the consent issue.