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Defend Sexual Assault Charges

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Our Experience

Donich Law has experience defending a wide variety of individuals charged with various sexual assault charges of varying severity. In some cases, we have been able to resolve matters without a criminal record for the accused. Additionally, we have experience defending historical sexual assault cases, with accusations dating as far back as the 1970’s. If you are or will be charged with sexual assault in Kitchener, you can consider getting a publication ban to protect certain evidence.

In 2022, Donich Law represented an accused person charged with cruelty to animals, sexual assault, assault (choking), assault with a weapon and assault in R. v. A.B. [2022]. The charges stemmed from alleged assaults that occurred on the complainant and her children several years prior when the accused and complainant were in an intimate relationship. The accused was sentenced to a lengthy period of incarceration on another set of related charges shortly after his arrest, further complicating the matter. The Firm set the matter down for trial and then launched an 11(b) argument citing the significant delay in bringing the accused to trial. Upon reviewing the delay, the Crown agreed to a withdrawal of the charges of sexual assault, cruelty to animals, assault (choking) and assault with a weapon.

In R. v. D.P. [2021], Donich Law represented an individual accused of committing an unprovoked sexual assault on his friend. The Firm arranged for the accused to undergo a psychological assessment which raised concerns of underlying mental health issues. After roughly 18 months of negotiations the Firm was able add context to the alleged assault and secure a withdrawal.

Sexual assault charges are difficult to get dropped. Since the #Metoo movement, the Crown has specific protocols they must follow before withdrawing any charge(s) to ensure the complainant(s) input is received and that it is in the public interest. This has resulted in more cases going to trial than previously because the accused is less likely to receive a favorable plea deal.

In January of 2020, the Firm secured an acquittal for an accused charged with sexual assault and forcible confinement after allegedly assaulting one of his employees at a restaurant he owned in R. v. M.Z. [2020]. It was alleged that the accused locked the door in his office when the complainant was on shift. The two started laughing and became friendly. It was alleged the accused then asked the complainant to sit on his lap and sexually assaulted her. The Firm was able to prove on cross-examination the complainant was lying to embellish her evidence which led to the acquittal at trial.

Shortly after, the Firm secured another acquittal of a sexual assault charge in R. v. K.H. [2020]. The Crown was seeking a Darville trial adjournment which was temporarily successful. The allegations related to sexual touching in a hotel when the accused was visiting Canada on business. Once trial resumed, the Crown attempted a further adjournment because her case was not ready to proceed. The accused had been waiting over a year to get to trial and had a right to proceed. The defence was ultimately successful and the accused was acquitted of all charges at trial.

In 2018, the Firm represented an individual charged with sexual assault, invitation to sexual touching and sexual interference for incidents that allegedly occurred over 20 years prior in R. v. D.D. [2018]. The Crown called the complainant as a witness and cross-examined both defence witnesses. The defence had a strong theory as to why the allegations were untrue, which is critical for trial success post #Metoo. The Firm was able to prove the allegations were unsubstantiated and secured an acquittal on all charges.

Common Sexual Assault Defences used by Lawyers

Donich Law - International Child Pornography Investigations we have Defended

Sexual assault is one of the most serious criminal offences. Residents of Kitchener are not immune from possible victimization, regardless of a person’s gender or age. The Waterloo Regional Police Service, as part of a 2021 report, documented 513 founded incidents of sexual assault in that year. Of that number 131 charges were laid. The demographic breakdown of this number saw 126 adult males charged, and two adult females. 24 youth males were also charged.

In 2017, the Firm defended an individual charged with sexual assault and sexual interference after allegations of historical abuse dating back to 1977 were reported to police in R. v. M.M. [2017]. After three years of litigation, the Firm was able to secure the withdrawal of all charges. This was achieved by advancing the litigation towards a preliminary inquiry and eventually a third party records application for the complainants medical information.

In 2016, the Firm represented an individual charged with sexual interference and sexual assault after allegedly sexually assaulting his daughter a decade prior in R. v. P.W. [2016]. The Firm was able to achieve a very lenient and rare outcome of a conditional sentence. Even though the accused plead guilty, the complainant still attended court to read her victim impact statement which was then factored into the resolution and relevant conditions.

In 2015, the Firm represented an individual charged with sexual assault in R. v. K.C. [2015]. The Firm was able to secure a withdrawal of the charges after proving that the two complainants had embellished the allegations. This result was achieved with assistance from independent counsel for the complainants. There are many instances where the police lay charges of sexual assault where the complainant(s) later change their mind about proceeding.

New Changes to Sexual Assault Laws in 2024

In R. v. C.B. [2021], Donich Law defended an individual charged with sexual assault after allegedly sexually assaulting his ex-wife during a dispute. The Firm uncovered evidence that the complainant had made false allegations of abuse in the past that were related to disputes over a marital affair. The Firm also strategically proposed a s.276 application which would provide the complainant with independent legal advice. The Firm was able to secure a withdrawal of the charge after close to two years of Crown negotiations and pre-trials when the complainant was unwilling to testify at trial.

In 2019, the Firm represented the owner of a private hotel in Toronto charged with sexual assault in R. v. T.K. [2019]. Ultimately, the Firm was able to secure a withdrawal. The accused was even reported for other sexual misconduct several years prior. The police took the unusual step of requesting the accused to complete a lie detector test. Although these tests generally don’t provide any useful evidence for trial, law enforcement can still use them when determining to lay charges, specifically when the allegations are on the minor spectrum of the offence.

In 2022, the Firm defended a client charged with assault, sexual assault, criminal harassment, and uttering threats in R. v. R.V. [2022]. The client was arrested and charged after his ex-partner contacted police alleging that she had been physically and sexually assaulted as well as threatened by the accused while the parties were in a relationship. The complainant further alleged that the accused made harassing phone calls to her and her family after she ended the relationship. After putting in a significant amount of upfront work and engaging in roughly 18 months of Crown negotiations, the Firm was able to secure the withdrawal of the sexual assault charge and resolve the matter while avoiding a criminal record.

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Frequently Asked Questions

What are the Most Relevant Rights an Accused Can Exercise in a Sexual Assault Case?

The most relevant rights for a person accused of sexual assault can be found under s. 10 of the Canadian Charter of Rights and Freedoms. These rights come into effect once anyone has been arrested. The two main rights in that section that are often utilized in sexual assault cases are the right to be informed of the reason for arrest and the right to counsel. Properly exercising these rights can have a major effect on how a charge progresses.

When an accused is informed of the reason for their arrest, they will be provided with the specific allegations against them, who the complainant is and when the offence is alleged to have occurred. This information is key in making sure that the accused is aware of the full scope and seriousness of the charges against them and allows them to have meaningful conversations with a lawyer if they choose.

The right to counsel entitles a person to contact a lawyer, such as our counsel in Kitchener, before they are questioned by police. A lawyer will inform the accused on how to best take advantage of their rights and prepare them for what they are about to face. This can be especially crucial in sexual assault cases because the police may have limited evidence available and will be seeking to coax more out of the accused. Through the right to counsel, the accused will generally be coached to say as little as possible so there is less information to be used against them later.

What is the Age of Consent in Kitchener?

The age of consent in Canada is generally 16 years old. However, there are some exceptions to this. In circumstances where a relationship of trust or authority exists between people, the age of consent is raised to 18 years. This change is meant to reflect the difference in power between people in these types of relationships. For example, the exception would apply in cases where a Kitchener business owner wishes to begin a sexual relationship with one of their employees. Because of the power they hold over their employee and the potential to coerce them into a relationship, the age of consent is raised to help ensure that the employee is mature enough to fully understand and consent to the relationship.

There is a further exception referred to as a close in age exception. Under this exception persons aged 14 or older can consent to sexual activity with anyone that is less than five years older than them. However, for the exception to apply, there cannot be an existing relationship of trust or authority between the parties. A similar exception exists for children aged 12 and 13, but they may only consent if their partner is less than two years older than them.

What is the Law Regarding Consent in Kitchener?

Section 273.1 of the Criminal Code defines consent as, “the voluntary agreement of the complainant to engage in the sexual activity in question.” That means that consent can be communicated verbally, or non-verbally by clear actions. However, consent is activity-specific and must be continuous. If the sexual activity changes in nature over an interaction, consent must be re-established. It can also be revoked at any time.

There are several scenarios where consent does not exist. Some of them include where someone has consented on behalf of a person, where the person has declined to consent by words or actions, where a person has abused a position of trust or authority to compel someone to engage in sexual activity, or where a person is incapable of providing true consent because they are intoxicated, unconscious or otherwise unable to understand the significance of their consent. Furthermore, consent must be affirmatively communicated. It is not a person’s responsibility to make their non-consent known. So, a person testing the waters by engaging in sexual activity to test a person’s reaction to it has not acquired consent. Instead, they will have committed sexual assault.

Do Limitation Periods Apply to Cases of Sexual Assault

Limitation periods are a deadline between when an offence occurs and when the Crown can legally lay a charge and accuse a person. Generally speaking, there is no limitation for sexual assault criminal offences in Canada. However, sexual assault cases are hybrid offences. This allows the Crown to elect whether this wish to prosecute a hybrid offence as a summary offence or indictable offence. Summary offences carry lesser penalties and are meant for less severe examples of offences. Indictable offences carry more strict penalties meant for more serious examples of offences. All summary offences carry a one-year limitation period.

No limitation periods exist that are specific to indictable or hybrid offences. As most Canadian criminal offences, such as sexual assault, are hybrid offences there is no effective limitation period. If a sexual assault occurred more than a year prior, the Crown would elect to prosecute an indictable offence to avoid the timing issue. However, if a person is facing a historical sexual assault charge that would be prosecuted summarily but for the time constraint, they can waive the limitation period to receive the lesser sentence for the crime.

Will an Accused’s Name be Published in the News in Connection with a Sexual Assault?

A person’s name and other information may be published in the media in connection with a sexual assault charge depending on several factors. The primary consideration on this issue is whether a court has ordered a publication ban on the matters related to the case until its conclusion.  This will prohibit what kind of information can be published. Media coverage is also dependant on the choices of the outlet covering the case.

For example, a newspaper in Kitchener may decide to publish personal details if the accused is well-known in the community or if they occupy a position of particular interest to the public. This might typically include teachers where a relationship of trust has been abused or a politician. Coverage may also be more common in smaller towns and close-knit communities. If an accused person wishes to avoid this coverage, they can have a lawyer seek a ban under s. 517 of the Code at the earliest opportunity to limit the information that can be published about the accused.

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Recent Cases

R. v. Kheyyatfeizi, 2023 ONCJ 86

The Ontario Court of Justice case of R. v. Kheyyatfeizi explores the issue of determining the reliability of competing testimony. In this case the offender was charged and convicted of sexually assaulting the roommate of his child’s mother. The offence occurred during the first meeting between the offender and the victim. At issue in the case was whether the offender touched the victim in a sexual manner without consent. During a conversation, the victim claimed the offender asked for and proceeded to hug her without consent. He also kissed and licked the back of her neck. The offender testified that he asked for the hug and the victim expressed consent three times and the two then kissed.

The case hinged on which testimony the judge accepted. The standard for this acceptance is described as follows, “In assessing competing evidence, I cannot compare each account and decide which account I believe. I can believe or disbelieve a witness, but still be left with a reasonable doubt after considering all the evidence. Moreover, I can accept some, all, or none of a witness’ evidence.  Frailties and/or inconsistencies in a witness’ evidence do not necessarily mean their evidence should be rejected.” [at para 22] The judge ultimately found that the offence had been committed because of an inconsistency in the offender’s testimony. He initially claimed that he would not shake the victim’s hand because of the COVID-19 pandemic still ongoing at the time of the offence, but he also admitted that he engaged in the contact in question. This severely undermined the reliability of his testimony.

R. v. Simkins, 2023 ABPC 30

The Provincial Court of Alberta case of R. v. Simkins emphasizes the importance of continued consent in sexual assault cases. The offence at issue occurred when the offender and victim, two men who were friends, began kissing after the offender gave the victim a back rub. As events progressed, the victim positioned their body in a way that allowed the offender to remove their underwear, this was found to be non-verbal consent. However, the offender began oral sex without consulting the victim and the victim’s response indicated that the action was unwelcome.

In determining the appropriate sentence, the judge issued DNA and SOIRA orders, as well as a 10-year weapons prohibition. The main punishment was a conditional sentence for a period of two years less a day. The relevant caselaw determined that the acts committed by the offender constituted a major sexual assault.

R. v. Khaliq, 2023 BCPC 32

The Provincial Court of British Columbia case of R. v. Khaliq is an example of a scenario where a more severe sentence for sexual assault can be imposed. The offence occurred when the victim invited the offender to a party. Everyone at the party was intoxicated except the offender who abstained for religious reasons. At one point during the evening, he kissed the victim without consent and was asked to stop. Later, when the victim was feeling unwell, the other guests asked the offender to take her home as he was the only sober person there. He agreed but did not know the route to the victim’s home. He got lost and during the journey stepped out of the vehicle to urinate. The victim also exited the vehicle. While trying to get the victim back into the vehicle, the offender engaged in vaginal and anal sex with the victim and ejaculated into her without a condom.

The offender was sentenced to three years imprisonment. The judge also issued DNA and SOIRA orders, as well as a 10-year weapons prohibition. As a final comment on the appropriateness of the sentence, the judge said, “Had the prosecution asked for more than three years in jail, I would have considered it very seriously. I agree with the prosecution that three years’ jail is the minimum that can and should be imposed in this particular case. Any lesser jail term would bring the administration of justice into disrepute. The harm done to the victim, in this case, is unimaginable. The horror of being an intoxicated single woman, getting a short car ride home, and ending up being sexually violated demands a significant sentence.” [at para 31] As such, the exploitation of an intoxicated victim by a sober offender clearly marks one of the most severe examples of conduct that can be described as sexual assault.

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.