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Defend Sexual Assault Charges

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Our Experience

Sexual assault is a criminal offence, and its impact alone can have a major effect on the lives of a resident of Ajax, Pickering, or Cobourg. Within their 2022 Regional Crime Statistics, the Durham Regional Police Service reported 829 sexual violations, which includes sexual assaults. The three-year average for reported incidents in this category was 744. The Cobourg Police Service disclosed in their 2021 Annual Report that there were only 18 reported incidents of sexual offences. Of the 16 that were founded, only one went unsolved.

Donich law defended the owner of several restaurants in the Toronto area who was accused of sexual assault and forcible confinement after allegedly abusing an employee in his office in R. v. M.Z. [2020]. Counsel was able to establish during cross-examination that the complainant had been lying about the facts, leading to the client’s complete acquittal.

Donich law obtained another acquittal for a client accused of sexual assault in R. v. K.H. [2020]. The allegations related to unwanted sexual touching when the complainant was sleeping in a hotel in Toronto. The businessman travelling from the United States maintained his innocence and proceeded to trial. The Crown advanced a Darville adjournment and was initially successful. However, the defence secured an acquittal the following day when the witness failed to attend or was interested in participating.

Donich Law defended a client accused of sexual assault, invitation to sexual touching, and sexual interference in R. v. A.E. [2019]. The crimes were allegedly committed in 1985. Counsel discovered proof that the complainant was fabricating these claims, and the client was found not guilty. Like many sexual assault allegations, the defence was required to proceed to trial to achieve the result. The Crown mandate now requires specific approval and in some cases, complainant input to withdraw a sexual assault charge.

Donich Law represented a defendant accused of allegedly sexually abusing a co-worker in a Swiss Chalet restroom in the matter of R. v. S.L. [2018]. The complainant had concealed the fact that she and the accused were having an affair before the event, information which the Firm applied to have introduced as evidence at trial through a s.276 application. The Crown withdrew the charges against the client after learning of this evidence. However, without advancing the application and requiring the complainant to testify, the result would not have been achieved.

Common Sexual Assault Defences used by Lawyers

Donich Law - International Child Pornography Investigations we have Defended

Donich Law successfully defended a person accused of 11 counts of sexual assault and sexual interference with various underage relatives in R. v. Z.C. [2018]. Defending sexual misconduct allegations with multiple complainants is difficult. The Crown will often use a similar fact application where they will attempt to strengthen the overall evidence between the complainants. The defence can challenge this application with a strong theory or evidence of collusion.

The firm defended a well-known realtor who was accused of sexual assault in R. v. Y.R. [2017] and reached an agreement with the complainant before any charges were formally filed. However, the defence had to strategically disclose a sex tape to the investigating officer which showed the complainant holding the camera, ultimately discrediting her evidence of sexual assault and preventing the charges.

Donich Law was successful in getting all charges dismissed for a defendant accused of sexual assault, sexual interference, and invitation to sexual touching in R. v. D.N. [2016]. Over a period of several days at trial, the defence was able to prove the complainant was lying with evidence obtained through private investigation. This was put to the complainant on the stand where she was caught lying. This was fatal to the Crown’s case, which led to the acquittal.

New Changes to Sexual Assault Laws in 2024

In 2022, the Firm successfully represented an individual charged with uttering threats, sexual assault, assault, and criminal harassment in R. v. R.V. [2022]. The accused was charged after the complainant, the accused’s ex-partner, made accusations of physical and sexual abuse while the parties were in an intimate relationship. The complainant further alleged that the accused had threatened to kill her and had repeatedly contacted her and her family after she ended the relationship. The Firm ultimately secured the withdrawal of the sexual assault charge and resolved the matter without a criminal record for the accused after almost two years of negotiations with the Crown.

In 2022, the Firm successfully represented the complainant in a sexual assault, sexual interference, incest, and invitation to sexual touching case in File No. ****97 [2022]. The complainant hired the firm after making allegations of abuse against a family member and then later deciding not to go ahead with the charges due to significant issues with recollecting in the alleged incidents. Upon reviewing the file, the Crown was seeking a penitentiary sentence of eight years for the accused. The Firm worked alongside the accused’s counsel to present a united defence, ultimately leading to all charges being withdrawn.

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Frequently Asked Questions

What is a SOIRA Order in Cobourg? 

Under the authority of the Sex Offenders Information Registration Act, a court must make an order when a person is convicted of a primary designated offence, such as sexual assault, for them to register under that Act. A complete list of designated offences can be found under s. 490.11 of the Criminal Code. These orders are issued during sentencing. If the maximum term of imprisonment for the offence committed is five years, a SOIRA order will remain active for 10 years. A maximum prison sentence of 10- or 14-year years will see the order’s duration include to 20 years. Finally, an offence carrying a life imprisonment sentence, or a repeat offender must register as a sex offender for life.

After reporting to a registration centre, an offender must provide their biographical details such as their name, date of birth, and gender. They must also provide their address, contact information and the addresses and contact information of their workplaces and/or schools. Finally, they must provide the details of their car, driver’s licence, and passport number. The offender must report one time every 11 months to a year, or within 7 days of changing their name, address, or receiving a piece of identification. If an offender fails to comply with this order, they will be charged with breaching a court order. The public cannot access the registry, it is used for the benefit of law enforcement.

What Other Penalties are Associated with a Sexual Assault Conviction?

Aside from SOIRA orders, other common penalties that go along with a sexual assault conviction are DNA orders, weapons prohibitions, and orders restricting access to children. Orders restricting access to children are authorized under s. 161 of the Code. These orders are issued when a person is sentenced to a variety of sexual offences where a child is the victim. The terms of the order stipulate that an offender shall not be in a public place where children would reasonably be expected to be. Offenders must keep a specified distance from the victim’s home, or any place associated with them. Offenders are also prevented from holding employment or volunteer positions where they are in a position of trust and authority over children. Offenders cannot have any form of contact with anyone under 16 unless that contact is supervised. Finally, offenders may only use the internet under conditions imposed by the court. The court can set any length they wish for such an order, and a violation of its terms would lead to additional criminal liability.

A weapons prohibition is dealt with under s. 109 of the Code. It is issued in circumstances of violent sexual assault or sexual assault with a weapon. The order applies to any firearm, crossbow, restricted or prohibited weapon, ammunition, or explosive device. Weapons prohibitions for first-time offenders last for 10 years. Any repeat offences will result in a lifetime weapons ban. As with other orders, a breach will lead to liability, or being charged with a weapons offence as the case may warrant.

What Should Someone Do if They are Being Investigated by the Police in Cobourg?

If someone is being investigated by the police for sexual assault, they should contact a lawyer, such as our counsel in Ajax, Pickering, and Cobourg, as soon as possible. Often, victims of sexual assault will make their allegations to other people before going to the police. This may give the accused person some advanced warning to prepare. This is especially important in cases of sexual assault because police act mostly on belief in the victim rather than independent investigation. Therefore, contacting a lawyer is crucial as they will be able to instruct the person on their rights upon arrest and obligations concerning the criminal justice process.

Will a Person Convicted of Sexual Assault in Ajax, Pickering or Cobourg Have to Provide a Sample of Their DNA?

Any person convicted of sexual assault will have to provide a DNA sample, as sexual assault is a primary designated offence, unless the assault was minor, or the offender was easily identifiable to the victim. DNA orders are set out in s. 487.051(1) of the Code and are governed by the DNA Identification Act. Samples are stored in a national DNA data bank and are used by law enforcement and others to prosecute individuals who committed designated offences, or to identify missing persons and unidentified remains. The samples are taken by either a police officer or another trained individual, and the samples remain in the bank permanently. Samples may be removed from the bank and sealed if the offender is either pardoned or has their criminal record suspended.

What are Some Common Myths and Stereotypes Surrounding Sexual Assault?

There are many long-believed myths and stereotypes that concern sexual assault that no longer hold any value in Canadian law. As our understanding of this topic has evolved over time, it becomes clear that many of these myths are damaging to victims and make it more difficult for them to come forward seeking justice. Among the most important discredited myths is the idea that it can no longer be assumed how a victim of sexual assault should behave during or after the offence. Some victims may resist the assault, and some may not. Some may delay going to the police out of fear. Trauma responses are extremely personal, so a judge who decides a case based on their own assumptions rather than the available evidence has committed an error of law. Nor can these factors undermine the credibility of the victim’s testimony.

Another stereotype of sexual assault deals with the idea that how a victim dresses affects the notion of consent. It was once believed that a person dressed in revealing or otherwise sexually suggestive clothes would consent to sexual activity. However, the Ontario Court of Appeal in R. v. Lacombe, 2019 ONCA 938, did away with that reasoning. Where the trial judge had relied on improper reasoning informed by the victim’s outfit during the offence, the appeal court clarified that the way a person dresses does not signify consent or justify assault [at para 39].

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Recent Cases

R. v. Simkins, 2023 ABPC 30

The Provincial Court of Alberta case of R. v. Simkins explores the concept of consent. Consent must be an provided in ongoing communication between partners that is re-established as the sexual activity progresses.  The offence at issued occurred when two friends had engaged in kissing. The victim that positioned their body in a way to help to the offender remove their underwear. The offender then performed oral sex on the victim, but their reaction indicated that this was unwelcome.

The offender was issued a conditional sentence for two years less a day. Orders were also made in respect to DNA, SOIRA and a 10-year weapons prohibition. The circumstances dictated that the offender had committed a major sexual assault, but the trial judge was aware of the greater context the facts provided. As such, the sentence was rationalized by the following, “I am satisfied that a conditional sentence would not endanger the safety of the community nor offend the principles of sentencing in this particular case. While I recognize that the paramount principles in sentencing a major sexual assault offence are denunciation and deterrence, I must also consider that an offender should not be deprived of their liberty if less restrictive sanctions are appropriate” [at para 93].

R. v. B.M., 2023 ONCJ 31

The Ontario Court of Justice case of R. v. B.M. demonstrates an aggravating factor that leads to a stronger sentence for sexual assault, the victimization of a child. The offender here was a long-time employee of a family business. The victim was the owner’s daughter and the offence occurred over a period of three years while the victim was between the ages of 12 and 15. The assaults happened on business or property or during business activities. It was a mutual agreement between the offender and the victim to keep these events quiet.

Pleading guilty to the offence acted to lessen the punishment the offender received to some degree, but the judge was also aware of the overwhelming number of aggravating factors. In departing from the recommendations made by the Crown and defence, the judge imposed three years imprisonment, as well as SOIRA, DNA, and weapons orders. The justification for this sentence was because the offender knowingly committed the offences, abused a relationship of trust and authority they had with the victim, and then attempted to keep the events quiet. All these points necessitated a strong punishment.

R. v. Saffarpour, 2022 ABPC 243

The Provincial Court of Alberta case of R. v. Saffarpour shows that even minor unwanted sexual contact can lead to a conviction for sexual assault. The offence occurred at a train station where the offender approached the victim and asked her to call him a taxi. During the interaction the offender made sexual advances but was rejected. He also grabbed her buttocks. For these actions, the offender was discharged on the condition that he serve three years of probation and perform 240 hours of community service. A DNA order was made, and the offender was also ordered to attend counseling.

All criminal sentences must be proportionate to the harm caused. However, a sentence must also serve the purposes of denouncing the criminal behaviour, deterring others, and rehabilitating the offender. The judge was aware of this needed balance, as well as the fact that, even though minor, this was still a serious offence. “Sentencing goals are often in tension.  Although a probation order is primarily a rehabilitative sentencing tool, there can be conditions in a probation order that will give effect to denunciation and deterrence… I find in the specific circumstances of this case, a lengthy probation order (more than twice the length proposed by the Crown, albeit after a proposed four month jail term) with the maximum hours allowed for community service, can give proper weight to denunciation and deterrence while still giving weight to other sentencing principles including rehabilitation and restraint” [at para 61].

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.