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the resource project

When the Criminal Justice System Doesn't Provide an Answer

Other Pathways to Safety, Accountability and Justice

When a criminal case does not result in charges, a trial or a conviction, families can be left feeling as though the system has decided that nothing happened. That is not necessarily what the outcome means.

Criminal courts require a very high standard of proof, and many factors determine whether a case can proceed. Other systems may ask different questions and use different standards of proof. Depending on your circumstances, other avenues may include civil litigation, child-protection proceedings, professional or institutional complaints, protective court orders and, in some circumstances, restorative approaches.

Justice can also mean different things to different survivors. For some, it means a criminal conviction. For others, it may mean acknowledgment, safety, accountability, compensation, preventing access to other children, having their experience formally recognized—or simply having choices about what happens next.

One of the most important things for a parent to understand is:

A decision not to lay charges, a decision by the Crown not to proceed, a withdrawal of charges, or a finding of not guilty is not the same thing as a finding that the child lied or that the abuse did not occur.

Different systems ask different questions and use different standards. For example, Ontario child-protection investigations use the balance of probabilities standard when determining whether child-protection concerns are verified—essentially whether the evidence shows the concern is more likely true than not true. A criminal conviction requires proof beyond a reasonable doubt, which is considerably higher. That distinction becomes very important when families consider other avenues.

A Civil Lawsuit

A survivor may be able to bring a civil lawsuit against the person who sexually abused them. Depending on the circumstances, there may also be potential claims involving an organization or institution connected to the abuse. Whether another party can actually be held liable is highly fact-specific and requires legal advice.

The civil case is separate from the criminal case. A criminal conviction is not necessarily required before someone can pursue a civil claim.

And importantly for Ontario families, Ontario's Limitations Act states that there is no limitation period for a proceeding based on sexual assault. It also removes the limitation period for certain other sexual misconduct claims involving minors, relationships of trust or authority, dependency and related circumstances.

What would a civil case actually be seeking?

Civil court is primarily concerned with responsibility for harm and compensation, rather than imprisonment. Depending upon the facts, damages could potentially relate to things such as psychological injury, pain and suffering, therapy or treatment expenses, loss of income or earning capacity, and other losses caused by the abuse.

There is another potentially significant difference: the standard of proof in a civil case is not the criminal standard of beyond a reasonable doubt. Generally, civil liability is determined on a balance of probabilities.

In simple language:

Is it more likely than not that this occurred and that the defendant is legally responsible for the resulting harm?

That means a criminal prosecution can fail to produce a conviction while a civil claim may still be legally viable. However, parents should know that civil litigation can also be lengthy, expensive, intrusive and emotionally demanding. Records may have to be produced, witnesses may be questioned and the survivor may be examined about what happened. A lawyer experienced specifically in sexual-abuse litigation involving children or historical childhood abuse is much more appropriate than simply contacting a general civil-litigation lawyer.

It is important to get a consultation before deciding for or against civil action. Remember, you don't have to make the decision immediately. You have time.

Child Protection Can Still Have a Role

The criminal justice system and the child-protection system are not the same system.

A criminal prosecution asks whether the Crown can prove a criminal offence beyond a reasonable doubt. Child protection asks questions about children's safety and risk.

Ontario's child-protection standards explicitly use a balance-of-probabilities approach when determining whether child-protection concerns are verified. Consequently, the fact that police do not lay charges—or that criminal charges do not result in conviction—doesn't automatically determine what a Children's Aid Society may conclude or what safety measures may be appropriate.

That can be particularly important where the alleged person who caused harm continues to have access to children.

A Peace Bond May Sometimes Provide Protection

A peace bond is a court order that can impose conditions on someone where there are reasonable grounds for fear about future harm. It does not require a criminal conviction and obtaining one does not itself give the person a criminal conviction. Conditions can restrict contact, locations and other behaviour; breaching the conditions can itself lead to criminal charges. Ontario notes that peace bonds are enforceable across Canada.

There is also a specific provision in Canada's Criminal Code—section 810.1—dealing with reasonable fear that another person will commit certain sexual offences involving a person under 16. That could be worth discussing with police, Victim Services or a lawyer if there is an ongoing concern about a person's access to children.

Complaints to a Professional or Regulatory Body

If the person accused of causing harm occupies a regulated position of trust, there may be a separate professional complaints process. Depending upon the circumstances, that could involve a teacher, physician, nurse, registered psychotherapist, social worker or another regulated professional.

A regulatory investigation is not a criminal prosecution. Its purpose can include determining whether the professional committed misconduct and whether restrictions, suspension or other professional consequences are warranted.

So again:

No criminal conviction does not necessarily mean no professional accountability.

For the Resource Project, I'd phrase this carefully because the appropriate regulator and its powers depend on the person's profession.

Institutional Accountability

Sometimes the important question isn't only:

"Can the person who harmed my child be held accountable?"

It is also:

"Did an organization fail to protect my child?"

For example, depending on the circumstances, the abuse may have occurred in connection with a school, sports organization, religious organization, camp, childcare setting, youth organization or other institution.

Questions may arise about whether warning signs were ignored, policies weren't followed, previous complaints existed, supervision was inadequate, reporting obligations were breached, or someone in authority failed to act.

That can potentially lead to internal investigations, safeguarding reviews, regulatory processes and, in some circumstances, civil litigation.

Parents should get legal advice before making public allegations or beginning an independent campaign against an individual or organization.

Restorative Justice

This is more complicated in child sexual abuse cases and should never be presented as something a survivor ought to do, but it is a legitimate form of justice that some survivors may eventually want.

Correctional Service Canada describes restorative justice as focusing on the harm caused by crime and the needs of the people affected. Processes can provide opportunities for safe and voluntary dialogue and may allow victims to have the harm acknowledged, ask questions and seek meaningful accountability.

For CSA, however, substantial caution should be taken when considering this. It should be survivor-led, voluntary, professionally facilitated and carefully assessed for safety and power imbalance. In addition, a parent should never arrange a meeting with the person accused of abusing their child themselves.

Parents can explore it, but there is an important complication in Ontario: restorative justice after child sexual abuse is not something a parent can simply request from the Crown and expect to be offered, particularly when the alleged person who caused harm was never convicted.

Correctional Service Canada has a well-developed Restorative Opportunities program, but it applies when the person who caused the harm is serving a federal sentence of two years or more. In that program, the person harmed—or in some circumstances a representative or family member—can initiate the request.

What restorative justice could look like

It does not necessarily mean putting the child in a room with the person who abused them.

A professionally facilitated process can involve face-to-face dialogue, letters, video messages, or "shuttle mediation," where a trained mediator communicates between the parties without them meeting. CSC emphasizes that participation is voluntary, safety and privacy are continually assessed, and the process is shaped around the needs of the person harmed.

For a survivor, the purpose might be getting answers to questions, describing the impact of the abuse, hearing the other person acknowledge what they did, obtaining an apology, establishing boundaries, or identifying something the person who caused harm can do to repair some of the damage. Forgiveness is explicitly not the objective.

And there's an important prerequisite: genuine restorative justice is about accountability, not determining whether the child's allegation is true. CSC describes the offender side of the process as acknowledging and accepting responsibility for the harm caused.

But what if there was no conviction?

This is where things get much less straightforward. The federal CSC program won't solve that problem because it is designed for people harmed by offenders serving federal sentences.

A family could instead ask Victim Services, their local sexual-assault/child-advocacy service, the investigating police service or Crown's office whether there is a qualified community restorative-justice provider available for their circumstances.

Parents should not attempt to create their own restorative meeting. 

Particularly in child sexual abuse, there can be enormous differences in age, authority, family power and psychological vulnerability. A properly trained practitioner needs to assess safety, voluntariness, the person's willingness to take responsibility and whether participation could cause additional harm.

You many desperately want to sit across from the perpetrator and have them admit what they did to your child, but that doesn't necessarily mean restorative justice is right for your child.

The process should be survivor-centred rather than parent-centred. Depending upon the child's age and circumstances, the safest restorative process might involve no direct participation by the child whatsoever. And sometimes the answer after assessment should simply be no restorative process.

A practical starting pathway in Ontario would be:

1. Talk with the child's existing victim-support/advocacy professional. Ask specifically about restorative justice or restorative accountability for sexual harm.

2. Ask Victim Services or the Crown's office whether any restorative program is available locally and whether sexual offences are eligible.

3. If the person who caused harm is serving a federal sentence, contact Correctional Service Canada's Restorative Opportunities Program to ask whether the situation is eligible.

4. Do not contact the person who caused harm to arrange mediation yourself. Have an appropriately trained professional assess whether the case is suitable.

5. If the child is interested, involve their trauma therapist/support professional in assessing readiness and what form of participation—if any—would actually serve the child's needs.

For families in the federal system, Correctional Service Canada's Restorative Opportunities program explains the process and how victims can initiate contact.

Restorative justice isn't the "lesser" option when criminal justice doesn't work. Done properly, it asks a fundamentally different question. 

Criminal justice primarily asks:

Can the state prove that this person committed this offence?

Restorative justice asks:

What harm occurred, who was affected, what responsibility will the person who caused the harm take, and what is needed now?

For some survivors, having someone unequivocally say "I did this. It was wrong. You did not cause it. This is what I am going to do to ensure I never harm someone again" could represent a form of accountability they never received through the criminal process. For others, never communicating with that person again may be the safest and most empowering choice.

Important Note:

Before pursuing civil litigation, regulatory complaints, media/public disclosure or direct contact with the person alleged to have caused harm, speak with a lawyer or the professionals involved in the case. One avenue can sometimes affect another, and there may also be privacy/publication-ban considerations.

Can a parent have someone put on Canada's sex offender registry if they weren't convicted?

Generally, no. Canada's National Sex Offender Registry isn't a public list onto which a parent, police officer or Children's Aid Society can simply place someone because there is a credible allegation.

Registration is governed by the Sex Offender Information Registration Act and Criminal Code provisions. The current Criminal Code ties sex-offender registration orders to specified legal outcomes involving designated offences—for example, when a court imposes sentence in circumstances prescribed by s. 490.012.

If someone was investigated but never charged, or charged but acquitted, a parent cannot independently apply to have that person added to the National Sex Offender Registry simply because they believe the abuse occurred.

"If they can't prosecute him, can we at least have him registered so other children are protected?"

Unfortunately, the registry isn't designed to function that way, but that does not mean there are no possible mechanisms for protecting other children.

Depending on the situation, those could include child-protection involvement, professional-regulatory action, institutional safeguarding measures, family-court orders, peace bonds or other court-imposed restrictions.

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