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Defend Sexual Assault Charges

Crime Statistics

In 2019 and 2020, 1,507 individuals were convicted of sexual assault in Canada. Of those offenders, 57% of offenders were sentenced to prison, 10% were sentenced to a conditional sentence. Just over 14% of offenders were sentenced to between six and 12 months in prison, 18% were sentenced to between one and two years in custody, and 25% were sentenced to more than two years in custody.

The Supreme Court has also signaled a change in recent years in the way sexual assault cases are handled in the criminal justice system. In the last decade, the Supreme Court has heard less than 40 cases involving a sexual assault. Of 36 cases (as of May 2022), the Supreme Court sided with the complainant (victim) in 34 cases.

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Offenders Sentenced to Custody in 2020
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Jail Between 2 Years to 6 Months in 2022
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Sexual Assault Convictions in 2022
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Recent Sexual Appeals Heard by the Supreme Court

Our Experience

Sexual assault is one of the most serious criminal offences under Canadian law. Residents of Brampton should be aware of recent statistics gathered by the Peel Regional Police as part of their 2021 Annual Report. Using the umbrella term sexual violations, which includes sexual assaults, the PRP documented 1,067 incidents of sexual violations in that year.

In 2021, Donich Law represented an individual charged with assault (choking) and sexual assault in R. v. Y.F. [2021]. The Firm hired an expert witness to refute the Crown’s theory that the complainant was incapacitated at the time of the alleged sexual activity. Text message evidence was also tendered at trial where the accused allegedly confessed to the allegations. The Firm was ultimately able to secure an acquittal on one count of assault and one count of sexual assault at trial. This was achieved by proving the complainants had colluded with the attempt to tailor evidence in the case.

In July 2019, the Firm secured the withdrawal of sexual assault, sexual interference and invitation to sexual touching charges in R. v. A.E. [2019]. In that case, the allegations stemmed from an incident that allegedly occurred in 1985. The defendant had been accused of engaging in sexual acts with a minor family member while he was a youth. After over a year of litigation, the Firm was able to prove that the allegations had been fabricated due to a family dispute regarding inheritance money. The Crown was not willing the withdraw the charges initially, so the defence was forced to proceed to trial and only at that point was able to reveal weaknesses in the case.

Sexual Assault Trial Challenges

Sexual assault incidents were solved at a 68.1% rate and represented an increase in reported incidents from 2020 by 154. However, these statistics are limited as sexual assaults are historically underreported to the police. A study produced by the Canadian government in 2019 found that 83% of sexual assaults go unreported based on the most recent national data available at the time of publication.

In 2021 and 2022, 934 individuals were convicted of sexual assault in Canada. Of those offenders, 41% were sentenced to a period of custody, roughly 19% were sentenced to a conditional sentence, 25% were placed on probation and 15% were given some other sentence. Roughly 91% of all offenders convicted were male.

In the Firm’s R. v. R.V. [2022], it successfully defended a client charged with assault, criminal harassment, uttering threats, and sexual assault after his ex-partner made allegations of abuse and threats during the relationship. It was further alleged that after the complainant ended the relationship, the accused harassed her through repeated communication after he was asked to cease communication. The Crown initially sought a period of incarceration upon conviction. The Firm engaged in several months of negotiations with the Crown. The accused completed a significant amount of upfront work. The Firm ultimately resolved the matter without a criminal record for the accused and secured a withdrawal of the sexual assault charge.

Common Sexual Assault Defences used by Lawyers

Donich Law - International Child Pornography Investigations we have Defended

In 2017, after three years of litigation, the Firm secured the withdrawal of sexual assault and sexual interference allegations in its R. v. M.M. [2017]. The complainant was five years old at the time of the alleged incident in 1977. The firm was able to establish this outcome through a third-party records application and a preliminary inquiry. Pre-trial motions are critical defence strategies in sexual assault cases because they can help yield complainant secrets which are often withheld in evidence and tactically beneficial to the accused’s case.

In 2016, the Firm secured the withdrawal of all charges where a TTC driver was charged with nine different sex offences including child luring in its R. v. A.H. [2016]. The incidents allegedly occurred on the job with a young person. The incidents were reported by the parents and embellished. The complainant later retained their own lawyer who worked with the defence to challenge the Crown resulting in all sex offences being withdrawn. Complainants are frequently retaining their own lawyers in the justice system to ensure their rights are protected and that their voice is properly heard.

In 2015, the Firm secured the withdrawal of two sexual assault charges after proving that the two female complainants had fabricated the allegations in its R. v. K.C. [2015]. The complainants also retained their own lawyer who worked with the Firm to end the proceedings. The allegations started with a falling out between friends, leading to unwanted criminal proceedings for all parties. In some circumstances, people can become angry in the breakdown of a relationship which can lead to evidence being embellished when reported to law enforcement.

New Changes to Sexual Assault Laws in 2023

In 2022, the Firm represented the complainant in a sexual assault, invitation to sexual touching, incest, and sexual interference case in File No. ****97 [2022]. The complainant hired the firm after making allegations of sexual abuse against a family member, and later deciding she did not wish to proceed with the case. The Crown’s initial position on sentence was an eight-year penitentiary sentence. The Firm worked in conjunction with defence counsel on the matter to point out vital weaknesses in the Crown’s case, ultimately leading to all charges being withdrawn.

In 2022, the Firm represented an accused charged with sexual assault, assault, uttering threats, and criminal harassment in R. v. R.V. [2022]. The accused was arrested after his ex-partner alleged that he had assaulted her on several occasions, threatened to kill her, and then repeatedly contacted her after she ended the relationship. Donich Law negotiated with the Crown assigned to the file for more than a year and a half and was able to resolve the matter with the sexual assault charge being withdrawn and avoiding a criminal record for the accused.

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Frequently Asked Questions

How do False Accusations Impact a Person in School, at Work or as a Regulated Professional?

Accusations of sexual assault can have major consequences even if they are false. Each of these three contexts have different processes that exist outside of criminal law for dealing with sexual assault allegations. In the workplace, if an employee is accused of sexually assaulting a co-worker or customer in the course of their work, they may be suspended for a period either with or without pay. The exact measure taken depends on the specific employer’s policy or any applicable employment contract.

Schools, universities, and colleges can impose interim measures on an accused individual while the incident is being investigated. These measures might include requiring the accused to always keep a certain distance from the complainant. This measure can have additional consequences. For example, if a person from Brampton is attending university and is in the same class as the complainant, they will be unable to attend that class until the matter is resolved in some manner.

Regulated professionals such as doctors or lawyers have stricter standards to follow. Due to the positions of trust they occupy in society, their employment is governed by special profession-specific laws that set out the procedures for dealing with and investigating sexual assault allegations. Every regulated professional has a legal duty to self-report any time they believe they have engaged in conduct that is unbecoming of a member of the profession. A possible sexual assault easily satisfies this standard. The professional consequences of failing to report could lead to a professional having their license to practice in their field revoked.

How Do Independent Investigations Work in These Contexts?

Educational institutions and the administrative bodies that oversee regulated professions have specific methods they must follow to investigate sexual assault allegations that are independent of law enforcement. Schools and other similar institutions must follow their own sexual or gender violence policies that they developed in accordance with Ontario law. They policies can be very broadly drafted, which makes it difficult for an accused person to defend against or dispute the allegations against them. Many accused persons may find themselves railroaded towards an outcome as part of this procedure.

Each body that oversees a regulated profession like the College of Physicians and Surgeons of Ontario or the Law Society of Ontario has specific investigation procedures within their enabling legislation. These investigations are independent and often lead to disciplinary proceedings that operate according to the applicable law. These proceedings are then published and made available to the public. The results of these administrative proceedings may then be subject to judicial review in certain circumstances.

What are the Rights of a Someone Accused of Sexual Assault in Brampton?

A person who is criminally charged with sexual assault under s. 271 of the Criminal Code or a similar offence has the same rights as any accused person. Section 10 of the Canadian Charter of Rights and Freedoms guarantees several rights upon arrest. They include the right to be notified of the reason for arrest, the specifics of the offence and when it was committed. An accused person can also challenge the legal validity of their arrest.

Perhaps most important to individuals accused of sexual assault is the right to counsel. Once arrested, every individual will be given the opportunity to contact a lawyer, such as our counsel in Brampton. It is important that an accused take advantage of this because a lawyer will instruct them on how to best exercise their rights. Typically, that advice will be not to respond to the police’s attempts at interrogation. Many sexual assault cases are decided based on the testimony of the accused and the complainant and because of this, police will do anything they can to draw out useful information or twist something an accused says. Anything an accused says will be put on record and cannot be rescinded, so the less information the police have at their disposal, the better.

What are the Civil Law Implications of a Sexual Assault Charge?

Criminal liability is not the only legal issue facing someone charged with sexual assault. They may also face civil liability and may be sued by the complainant for the tort of battery. If a victim sues the offender following a conviction for sexual assault, they will almost certainly be found liable for committing the tort of battery. This is because the burden of proof in civil courts is lower than criminal courts. Therefore, if a person has been convicted of sexual assault, the issue in civil court becomes what the effect of it was on the victim and what the value of that damage was. Furthermore, because the standard for civil liability is lower, in that plaintiffs need to only demonstrate that something is more likely than not to have happened, a person found not guilty of a criminal offence may still be civilly liable.

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Recent Cases

R. v. Guimond, 2023 NUCJ 14

The Nunavut Court of Justice case of R. v. Guimond demonstrates sentencing considerations when the victim is under the age of 16. The offender in this case was charged with sexual assault, indecent exposure, and sexual interference. The offence was committed when the victim, a nine-year old girl and her family visited the offender and his partner. At one point, the mother had left the child asleep in a room, although in a different spot than the offender’s partner. The offender then came into the room and laid down beside the victim and sexually assaulted her.

In determining the appropriate punishment, the judge highlighted the relevant principles of sentencing applicable in this case. Given that the victim was an aboriginal child, the primary goals of the sentence were denouncing the offender’s heinous conduct and deterring others from committing similar crimes. The rehabilitation of the offender was a secondary consideration given that the offence was predatory and intentional. The offender in this case was also aboriginal, which entitled him to special sentencing consideration, but he also had a lengthy criminal record that included three previous convictions for assault. The offender was sentenced for sexual interference only and received one year imprisonment, one year of probation and SOIRA and DNA orders were made. The offender’s access to children was then restricted for 10 years.

R. v. Deva, 2023 ONSC 2162

The Ontario Superior Court of Justice case of R. v. Deva was an appeal case looking to overturn a conviction for sexual assault. The offence at issue occurred when the offender and the victim sat next to each other while on a bus from Toronto to Mississauga. The victim was asleep and woke up to find the offender touching her breast. After questioning the offender about his behaviour, he moved to another seat and the victim made the bus driver aware of the situation. When the offender attempted to exit the bus, he was stopped, and the police were called. After being convicted at trial, the offender appealed on the basis that the trial judge put too much weight on the complainant’s testimony. It was the offender’s contention that the encounter was too brief, and the surroundings were too dark for the victim to provide the bus driver and police with an accurate note on her phone containing a description of the offender and a recollection of the incident.

In dismissing the appeal, the judge found that because the accused had challenged the reliability of the victim’s observations, the trial judge was entitled to rely on them as evidence. Furthermore, it was found that the testimony of the driver who overheard the interaction gave independent support to the victim’s recollection. Therefore, the offender had no viable ground to overturn the conviction on appeal.

R. v. D.M., 2023 ONSC 2151

R. v. D.M., another Ontario Superior Court of Justice case, explores the sentencing process for sexual assault. The offence at issue occurred when the offender, a friend of his and the victim all sat in a car at night in a parking lot. The victim was forced by the offender to engage in oral sex. A pre-sentence report indicated that while the offender maintained his innocence, he seemed to minimize the seriousness of his conduct and he exhibited a lack of insight regarding the concept of consent.

The offender was sentenced to two years imprisonment, and additional orders were made concerning DNA, SOIRA and a 10-year weapons prohibition. In reaching this decision, the judge rejected the defence’s position to issue a conditional sentence. They were of the view that the circumstances of this case left no alternative to imprisonment. “I know that this sentence will be very difficult for the offender and his supportive family to accept.  My hope is that they will someday understand that this sentence pays full respect to the importance of rehabilitation and individual deterrence for D.M., given his youthful first-offender status, but that anything less than a penitentiary sentence would simply not be fit” [at para 43].

About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.