Frequently Asked Questions
Does the complainant Testify and can the Accused Challenge that Evidence?
Can the Accused Testify in Court?
What is Physical Evidence and is it Admissible?
Can the accused Rely on Inconsistent Statements?
Sexual Assault Resources
Assaulting a Peace Officer
Sexual Assault Law in Canada
Consequences of a Criminal Record
Keeping Charges Private
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Vulnerable Sector Screening
Elements of a Crime
Testimony of the Complainant
In the majority of cases the evidence given by the complainant to the police during the initial reporting of the incident and the evidence given at trial is the most important evidence presented to the Court. There is often little to no physical evidence to present for a variety of reasons. This often leaves oral testimony as one of the few, or the sole source of evidence presented in sexual assault trials.
This is especially true in cases where the main issue at trial is consent. If the accused’s defence is that the sexual activity was consensual, the Crown will often depend on the testimony of the complainant to secure a conviction. In most cases this means the complainant will be required to take the stand at trial and tell the Court that the sexual activity was not consensual. This will generally involve the complainant giving a detailed description of the incident.
Defence counsel will be given the opportunity to cross-examine the complainant on their version of events, looking to poke holes in their story. Experienced defence counsel will attempt to impeach the credibility of the complainant by pointing out inconsistencies between the complainant’s initial statement to the police and the statements given to the Court during the trial. By pointing out enough inconsistencies in the statements given by the witness, defence counsel can create reasonable doubt in the case, which will result in a favourable verdict for the defence.
In addition to pointing out inconsistencies between the complainant’s initial statement to police and the complainant’s testimony during trial, the defence may also request a preliminary inquiry as a way to erode the complainant’s credibility. Legally, the purpose of a preliminary inquiry is for the Court to determine whether or not there is enough evidence to go to trial. In some cases, however, preliminary inquiries may be used strategically by the defence as a way to determine what evidence will be presented by the Crown at trial.
In most cases where a Crown is relying heavily on the statements of the complainant, the complainant will be required to testify under oath at the preliminary inquiry. This gives the defence a chance to get the complainant’s statements, under oath and on the record. When the complainant testifies again at the trial, the defence will be able to point out any inconsistencies in the complainant’s statements as a way further undermine the complainant’s credibility. This can prove to be an important strategy in defending sexual assault allegations, especially where the defendant has been wrongfully accused.
The complainant may be reluctant to testify at trial after being cross-examined by the defence at the preliminary inquiry. For some complainants, being cross-examined by defence counsel can be a traumatic experience. Having gone through it during the preliminary inquiry and knowing what to expect at trial can leave complainants reluctant to want to participate. This reluctance can lead to serious issues with the Crown’s case and can sometimes even lead to charges being dropped. That being said, the Crown has the ability to subpoena a complainant to testify at trial even if they are uncooperative. Failing to appear after being subpoenaed can even lead to criminal charges being laid against the complainant, though this is rare.
Testimony of the Accused
In addition to the testimony of the complainant, the accused will often take the stand in a sexual assault trial. Where the accused’s defence is that of consent, mistaken belief in consent, implied consent, or even an outright denial in any sexual activity occurring, the accused will often be encouraged to take the stand to present evidence to bolster their defence. Such testimony is often the only evidence that can be presented by the defence.
Where the accused’s defence is that the complainant consented to the sexual encounter, they may take the stand and explain this to the Court. In these situations, the accused will often testify that the complainant is fabricating the allegations. It is helpful if the accused can offer testimony as to why the complainant would fabricate the allegations after having engaged in consensual sex with the accused. Similarly, where the accused argues that no sexual encounter occurred at all, they may wish to offer an explanation as to why the complainant would fabricate the encounter.
Where the accused’s defence is a mistaken belief in consent, they will need to take the stand to explain to the Court why they had a reasonable mistaken belief in consent. If this defence is successful, the accused will be acquitted even if the Crown can prove that there was no consent to the sexual activity. To successfully utilize this defence the accused must convince the Court that based on the conduct of the complainant and the circumstances that existed at the time of the sexual encounter, it was reasonable for the accused to have a mistaken belief that the complainant was consenting to the conduct.
The defence of reasonable mistaken belief in consent may not be utilized in certain circumstances including where the accused was wilfully blind or reckless as to whether the complainant was consenting. It will also not be permitted where the accused failed to take reasonable steps to ascertain whether the complainant was consenting to the sexual conduct.
Recklessness occurs where the accused was aware of a risk of lack of consent and proceeded with the sexual conduct anyway. Willful blindness occurs where the accused intentionally hinders their own ability to ascertain whether consent has been given or fails to ask pertinent questions that would determine whether consent has been given.
Physical evidence such as photographic and forensic evidence, if available, can serve as an important tool to the Crown. Physical evidence can play an important role in cases where the identity of the accused is at issue or where there is uncertainty regarding the type of sex acts performed. Physical evidence may play less of a role in cases where the main issue is consent. In many sexual assault cases, no physical evidence exists at all.
Physical evidence can be more difficult to overcome in Court; however, it too can often be attacked using the correct strategy. Our Firm can assist you in formulating the best defence to the allegations against you to ensure the best possible outcome in your case.
Statements Against Interest and Inconsistent Statements
Another way to defend against a charge of sexual assault is to utilize statements against interest and/or prior inconsistent statements. Both statements against interest and prior inconsistent statements are considered hearsay evidence, however both are considered acceptable exceptions to the ban on hearsay and are thus potentially admissible as evidence in court.
An accused may be able to use correspondence such as email, text messages, Facebook and other social media chats and other digital correspondence to show that the complainant made statements inconsistent with their statements in court to try and impeach their credibility. Additionally, the accused may have made statements against their own interest outside of court that they may be able to introduce into evidence to bolster their defence.
The best way to defend a charge of sexual assault will depend entirely on the facts of the case and the accusations being made. Developing the correct strategy to attack the evidence presented by the Crown will help to ensure the best possible outcome in any case. Our Firm can assist in developing the best strategy for the facts of your particular case and assist in guiding you through the complicated court system.