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Defend Sexual Assault Charges

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Our Experience

Sexual assault is a serious criminal offence and a challenged faced by every community, including Guelph. The Guelph Police Service has developed a Sexual Violence Support Guide that is designed to provide victims with local resources and explain every step of the criminal justice process. Statistically, the GPS 2021 Annual Report shows that there were 133 occurrences of sexual assault in that year. This was an increase from 119 in 2020.

In R. v. Y.F. [2021], Donich Law defended an accused charged with assault for choking another individual, and sexual assault. The Firm litigated the matter for over two years, hiring an expert witness to refute the Crown’s assertion that the complainant was unable to consent to the sexual activity due to intoxication. The complainant and her friends testified at trial and were found not to be credible. In fact, it was proven in court that they discussed their evidence and partially colluded in an attempt to increase their odds of success. As a result, the accused was acquitted.

In 2022, Donich Law successfully represented a client charged with cruelty to animals, sexual assault, assault with a weapon, assault (choking), and assault in R. v. A.B. [2022]. The accused was arrested after his ex-partner made allegations of physical and sexual abuse that occurred years prior while the couple was in an intimate relationship. Due to the seriousness of the allegations, the Crown sought a significant term of incarceration upon conviction. Donich Law set the matter down for trial. Due to significant Crown delays in providing basic disclosure, the Firm launched an 11(b) argument, stating that the accused’s right to be tried within a reasonable time had been violated. The Crown reviewed the 11(b) material and ultimately withdrew the charges of sexual assault, assault (choking), assault with a weapon and cruelty to animals.

In R. v. D.P. [2021], Donich Law defended a man charged with sexual assault after he allegedly touched his friend in a sexual manner without consent. The Firm had the client psychologically assessed to reveal underlying mental health issues. The Firm negotiated with the Crown for roughly 18 months before securing a withdrawal by adding context to the assault. Since the #MeToo movement, new protocols must be followed before the Crown can withdraw any sexual assault charges. This has resulted in more cases going to trial given the diminished Crown discretion.

In early 2020, the Firm defended an individual charged with sexual assault and forcible confinement in R. v. M.Z. [2020]. In that case, the accused, who owned several restaurants around the city of Toronto, was alleged to have sexually assaulted an employee inside his office. After roughly a year of litigation, the Firm was able to prove, on cross-examination of the complainant, that she was being dishonest regarding the nature of the interaction, and the accused was acquitted of all charges.

In R. v. K.H. [2020], the Firm represented another individual charged with sexual assault and secured an acquittal for the accused. The result was achieved by challenging a Crown adjournment application. The accused showed up ready to proceed with his trial and was facing prejudice because the Crown was not ready. The Court granted a brief adjournment of the trial, only to have the case fall apart the following day. The Court balanced the complainant’s interest with that of the accused who was presumed innocent.

In 2019, the Firm defended an individual charged with sexual assault, invitation to sexual touching and sexual interference stemming from incidents allegedly dating back to 1985 in R. v. A.E. [2019]. In that case, after over a year of litigation, the Firm was able to present evidence to the Court proving that the complainant had fabricated the allegations. Prior to withdrawing the charges, the Crown required a risk assessment to satisfy herself that the outcome was in the public interest.

Common Sexual Assault Defences used by Lawyers

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In 2018, the Firm represented an individual charged with sexual assault and forcible confinement after allegedly sexually assaulting a co-worker inside a Swiss Chalet bathroom in R. v. S.L. [2018]. The complainant and accused had been having a secret affair prior to the alleged incident. The Firm filed a s. 276 application to admit evidence of the complainant’s past sexual history into evidence at trial, ultimately showing that the complainant had hidden exculpatory evidence against the accused, causing the Court to issue a stay of proceedings.

In 2018, the Firm defended an individual charged with eleven counts of sexual assault and sexual interference in R. v. Z.C. [2018]. In that case, the defendant had been accused by multiple minor family members. The Firm was ultimately able to have the charges withdrawn. Defending allegations with multiple complainants requires a strong theory of the defence, such as collusion. It is not enough to simply raise a reasonable doubt when multiple complainants are saying the same thing.

In 2017, the Firm represented a prominent realtor accused of sexual assault in R. v. Y.E. [2017]. The Firm was able to negotiate with the accuser and resolve the matter without charges being laid against the accused. This was carefully done through counsel and the arresting officer which ultimately challenged the grounds for the arrest. This can be a risky strategy because some evidence will be given to the police which could be used against the accused.

New Changes to Sexual Assault Laws in 2024

In 2016, the Firm defended an individual charged with sexual assault, sexual interference and invitation to sexual touching in R. v. D.N. [2016]. The allegations stemmed from an incident occurring more than ten years prior. After a three-day trial the Firm was able to secure an acquittal on all charges. Like many sexual assault cases the Crown has little discretion to unilaterally withdraw the charges. The complainant testified along with two defence witnesses. The defence was able to raise a reasonable doubt with respect to the Crown’s case and provided compelling evidence to support its theory which led to the result.

In R. v. C.B. [2021], the Firm defended an accused charged with sexual assault after allegedly touching his ex-spouse in a sexual manner without consent. Part of the defence strategy was to propose a s. 276 application which would provide the alleged victim with independent legal counsel and advice. Additionally, the Firm uncovered evidence of past false allegations of abuse related to a marital affair. After approximately 18 months of negotiations with the Crown, the Firm as able to secure a withdrawal of the charge when the complainant appeared unwilling to testify.

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Frequently Asked Questions

What Other Orders Are Common to Sentences for Sexual Assault in Guelph?

There are several different kinds of orders a court might issue in addition to a main sentence for an offender convicted of sexual assault according to s. 271 of the Criminal Code, which are known as ancillary orders. Of the most common types, one such order is authorized under s. 161 of the Code, which prevents an offender convicted of sexual assault either from attending areas where children under the age of 16 are likely to be, or from contacting anyone under that age. Sexual assault is a category of offence known as a primary designated offence that allows for an order to be made that requires offenders to provide a sample of their DNA. Often, offenders convicted of sexual assault will also have to comply with the terms of a SOIRA order that requires them to register as a sex offender.

There are additional orders that may be made depending on the circumstances of each case. If the sexual assault involves an additional act of violence or was committed with a weapon, a court may issue a weapons prohibition for a specific amount of time which is authorized by s. 109 of the Code. Finally, a court may issue a victim surcharge as part of the sentence under s. 737 of the Code. This fine is paid directly to the victim as restitution for the crime and is equal to either 30% of any fine imposed on the offender or $100 or $200 if the offender was convicted of a summary or indictable offence respectively. Though the court can waive the surcharge if it is impossible or unduly difficult for the offender to pay it.

What are the Common Forms of Evidence in Sexual Assault Cases in Guelph?

There can be many kinds of evidence involved in a sexual assault case. Most commonly, cases will feature testimony. This testimony will be provided by the victim and the accused, often because they may be the only people with knowledge of the offence. However, testimony may also come from any witnesses who saw the offence or from someone who contacted either party after the offence occurred. This includes police officers. In addition to testimony, there will sometimes be a record of communication between the parties in the form of texts, DMs or other messages. Video evidence of the offence may also exist.

In some sexual assault cases, there may also be physical evidence of the offence. For example, clothing that was worn during the incident or some object used to collect the offender’s DNA. An example of this is pants worn by a victim during an assault who used them to collect a sample of the offender’s semen after the assault had ended. Physical evidence may also include any rape kit used by the victim following the offence, although this is uncommon. Finally, medical records stemming from the offence may exist in some instances.

How do Arrests and Interrogations Operate in Sexual Assault Cases in Guelph?

There are two different arrest procedures police use for sexual assault matters. The first is typically used where the offence occurred some time ago, or where the accused is a close acquaintance of the victim. In those instances, the police will usually call or contact the accused, inform them of the offence and arrange for them to turn themselves in at a police station. If there is no prior relationship between the accused and the victim, or where the identity of the accused isn’t clear, police will perform a traditional arrest as soon as possible where they locate and arrest the individual.

Interrogations are conducted after an arrest and after an accused has been informed of their rights. These interrogations are conducted in a room with the police and the accused and videoed for the record. The interrogations themselves can be very different depending on the circumstances. Police officers are experts in this field and are skilled in coaxing information out of accused persons. This information may be acquired through simple questioning, or other methods. The police may even lie to a person about the nature of the evidence they possess to draw out a confession.

At What Point Does Someone Need a Lawyer?

Understanding the interrogation techniques discussed above, it is important to know that a person should contact a lawyer, such as our counsel in Guelph, as soon as possible. Our lawyers will inform someone of their rights and advise them not to say anything to the police, as the less information they are given, the less there is to be used against the accused in court. It is best practice to contact a lawyer even before a charge is laid and a person is arrested if possible. If someone is aware of an allegation of sexual assault that may be made against them, they should contact a lawyer. The more time they can use to prepare for the event of an arrest and learn their rights, the better.

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Recent Cases

R. v. Knight, 2023 BCSC 624

The Supreme Court of British Columbia case of R. v. Knight explores when a defence to sexual assault can be raised. The offender in this case was charged and convicted of sexual assault and sexual interference, which is the touching of a minor for a sexual purpose. The circumstances were that the offender met the victim on a bus one night after they had both been drinking at separate events. The offender, victim and two of her friends decided to go to the offender’s apartment to continue drinking. While at the offender’s apartment, the victim spilled beer on the offender’s pants and they both went to the bathroom. The situation developed to the point where the pair engaged in oral sex and would have done more had they not been interrupted by the victim’s friends who helped her leave the apartment.

The main issue of the case was that the victim was just under 16 years of age. The offender made no effort over the course of the evening and as such, committed a criminal offence. He attempted to raise the defence contained within s. 150(4) of the Code, which allows for a person to avoid liability if they had an honestly mistaken belief about a victim’s age and had made every reasonable effort to find out the true age. The judge confirmed that the offender made no such efforts and was reckless in not making the necessary inquiries that a reasonable person would make in the circumstances. In this case, assumptions of age based on physical appearance did not allow the offender to escape liability.

R. v. W.C.C., 2023 NSSSC 85

The Supreme Court of Nova Scotia case of R. v. W.C.C. dealt with the sentencing of an offender where they were a parent who abused their child. The circumstances of the offence established two incidents that occurred 16 years ago, where that the offender called the victim over to them in the living room when the victim woke in the middle of night.

The offender was sentenced to three years imprisonment. The judge also issued a permanent weapons prohibition and made DNA and SOIRA orders. The offender was an aboriginal person, which meant a Gladue report was produced that gave greater context and insight to the life of the offender. Through this report it was discovered that the offender was sexually and physically abused by both his own father and a Children’s Aid Society caseworker. He also had substance abuse issues and was involved in crime from a young age. Importantly, the victim forgave the offender and emphasized in her impact statement that any punishment issued should help him work through his own trauma. This context played an important role in the final sentencing decision. Acknowledging the progress the offender made on his own, the judge concluded, “I also strongly recommend that Corrections Services Canada consider and place WCC in the care (and treatment) of either the Psychiatric Services Division, or, preferably, in one of its Healing Lodges.  Based on the information presented at this sentencing hearing, WCC is worthy and deserving of these accommodations so that he might remain sober, heal, restore his relationship with CC and hopefully break the cycle of intergenerational trauma” [at para 54].

R. v. KC, 2023 ABPC 37

The Provincial Court of Alberta case of R. v. KC explores the issue of competing witness testimony in sexual assault cases. The case dealt with an incident where the offender, victim and the witness had all attended a neighbourhood party. All three were intoxicated and the offender was asked to leave, at which point he went to the offender’s home. The victim and the witness joined him later and the two of them went to a bedroom to watch a movie. The offender asked to join and was granted permission but was instructed to stay at the foot of the bed and above the covers. All three fell asleep and the victim woke at two points during the night. The first time, the offender’s arm was over her, at which point she moved it and told him to stop. The second time, the offender’s fingers were beneath the victim’s pants and in her vagina. The victim then left the room and went to the living room and the offender left the house shortly after.

In finding the offence had been committed, the judge noted the composure and credibility of the victim and the witness. They both admitted their intoxication and the limitations of their memories, but their evidence was consistent, particularly the instructions given to the offender when he entered the bedroom. On the other hand, the offender was dismissive of the process and behaving inappropriately and combatively. This was not enough on its own to shift the presumption of the offender’s innocence, but he also described events that no one else mentioned and were inconsistent with the rest of his conduct that night. Between these two factors the judge rejected his evidence, accepted the testimony of the other witnesses, and convicted the offender of the offence.

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.