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Defend Sexual Assault Charges

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Our Experience

Our lawyers at Donich Law have experience defending a wide range of sexual assault cases including those charged as first-time offenders and those who have a previous criminal record. A sexual assault charges can be laid for a wide array of behaviours. Anything from an unwanted hug or kiss, to forced intercourse. As a result, the available defences will vary from case to case.

Sexual assault is a serious criminal offence that can have broad and long-lasting impacts on the lives of victims. In an effort to ease the burdens of victimization, the London Police Service has developed an FAQ page regarding sexual assault and their investigation procedures to give victims as much help as they can. Statistically, the LPS 2022 Annual Report shows 562 incidents of sexual assault in that year.

In 2022, the Firm represented an individual charged with numerous serious sexual and violent offences in R. v. A.B. [2022]. The client was arrested after his wife and children made allegations of sexual and physical abuse. The accused was charged with sexual assault, assault – choking, cruelty to animals, assault with a weapon, and other charges. The accused had a prior history of similar criminal behaviour which factored into the Crown’s initial position on sentencing, which was five years imprisonment on conviction. The Firm launched a section 11(b) Charter application after there were significant delays in the Crown providing disclosure. As a result of the Charter application, the Crown agreed to withdrawal all charges in exchange for a plea to simple assault, avoiding a significant penitentiary sentence for the accused.

In many sexual assault cases, the only available evidence is the statement of the complainant. There is seldom DNA evidence or a third-party witness to the alleged assault. As a result, sexual assault cases are often assessed on the credibility and reliability of the complainant’s evidence. This makes the cross-examination of the complainant at trial a vital step in beating a sexual assault charge.

In 2020, the Firm represented a client charged with forcible confinement and sexual assault in R. v. M.Z. [2020]. The accused, the owner of a number of restaurants in Toronto, was charged after an employee made allegations of sexual abuse to police. Specifically, the complainant alleged that she had entered her boss’s office to pick up her cheque when he shut the door of the small room and assaulted her. At trial, the Firm cross-examined the complainant, pointing out issues with the timeline of events she provided. Ultimately, the accused was acquitted at the end of trail as the judge was left with reasonable doubt after hearing the testimony of the complainant.

The Firm has also acted for complainants in sexual violence cases. In some circumstances the victim will report the offence to the police, only to later change their mind for a variety of reasons. The complainant can then become stuck with being forced to participate in a trial. The Firm assisted the victim in its File No. ****97 [2022], where the step-brother was facing 8 years in prison for allegedly sexually assaulting her.

Common Sexual Assault Defences used by Lawyers

Donich Law - International Child Pornography Investigations we have Defended

Historical charges of sexual assault and other sexual offences are among the most common types of historical offences. For many victims of sexual assault, it takes years or even decades to come to terms with the abuse and report it to an authority. This leads to a higher concentration of historical sexual assault charges compared to other criminal offences. Donich Law has experience defending individuals charged with historical sexual assault and other sexual offences across Ontario in both the Ontario Court of Justice and Superior Court of Justice.

In the 2018 case of R. v. Z.C. [2018], the Firm successfully defended a client charged with a large number of sexual offences involving children including sexual assault and sexual interference. The charges stemmed from allegations from three different complainants who all claimed they were assaulted by the accused when they were children. Multiple complainants in a sexual assault case make the case significantly more difficult to defend. The Crown will often use evidence from one assault to prove another assault, in what is known as a similar fact application. After litigating the matter for more than two years, the Firm secured the withdrawal of 11 charges.

In 2017, the Firm represented an individual charged with historical sexual assault and incest charges which dated back to the 1980’s in R. v. W.C. [2017]. The complainant, the accused’s daughter, made allegations that she had been abused by her father as a child, leading to his arrest. The Firm presented the Crown and court with evidence to show that the complainant had reason to fabricate the allegations, ultimately leading to their withdrawal.

New Changes to Sexual Assault Laws in 2024

In the 2021 case of R. v. C.B. [2021], the Firm represented an individual charged with sexual assault and simple assault after getting into a conflict with his ex-spouse. The accused attended the complainant’s home on the day of the alleged incident to discuss their impending divorce. During their conversation an argument broke out which the complainant alleged led to her being assaulted by the accused. The Firm analyzed the disclosure material provided by the Crown and uncovered prior allegations of domestic abuse that had been proven false. These prior false allegations were utilized to weaken parts of the Crown’s case, ultimately leading to the withdrawal of the sexual assault charge.

Sexual assault and other sexual offences are often prosecuted more aggressively than other offences in Ontario and across Canada. Those who are convicted face steep penalties including periods of incarceration. In addition to facing jail time, those convicted of sexual assault may also be forced to register as a sex offender for a minimum of ten years, may be restricted from having access to children and may be forced to provide a sample of their DNA to be held by the RCMP.

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Frequently Asked Questions

What is the Role of a Defence Lawyer in a Sexual Assault Case in London?

The role of a defence lawyer, such as our counsel in London, in a sexual assault case is to act in the best interest of the accused and to ensure that the process is fair. The defence counsel essentially acts as a check on the Crown to ensure they are behaving appropriately. In practice, this means a defence lawyer will go through the disclosure package provided to the accused by the Crown. While doing so, the lawyer will be looking for any weaknesses in the Crowns case and determining the reliability and credibility of key witnesses. The lawyer will also determine if any of the rights afforded to the accused under the Canadian Charter of Rights and Freedoms were violated and challenge those violations in court. If the matter does not proceed to trial, the role of the defence counsel is to negotiate an acceptable solution for an alternative resolution such as the sentence received in exchange for a guilty plea.

What Evidence is Required for a Conviction in a Sexual Assault Case?

Very little evidence is truly required to ground a sexual assault conviction. All cases of this nature will at least have the statement of the complainant and the ability to consider the credibility of the testimony of the parties involved. Though many sexual assault cases are limited to a one-side-versus-the-other situation, the burden of proof on the Crown for establishing a sexual assault is very high. The Crown must leave the judge with no reasonable doubt that a sexual assault was committed by the accused.

There are other forms of evidence that may be used in a sexual assault case. These include rape kits used by the victim, but this is an uncommon occurrence as sometimes kits are not fully tested. Witness testimony may also be provided, but unless they physically witnessed the event, this testimony may be limited to the aftermath of the offence and may only provide insight into the mindset of the victim. DNA evidence is also uncommon. There may also be photos of injuries endured because of the offence entered as evidence, as well as a history of texts or other messages between the accused and the victim.

What if an Accused had a Previous Relationship with the Complainant in London?

Most sexual assaults are perpetrated by someone known to the victim. Recent numbers suggest the rate is somewhere around 85%. The extent of a relationship that a victim has with an offender is often not relevant to the actions constituting an offence. There have been several myths surrounding sexual assaults that have been debunked in recent years. Among these is the understanding that no victim should be expected to behave in any certain way and that past consent does not mean that present consent is a given. Consent is activity specific and can be revoked at any time.

The relationship between a victim and offender is relevant where a position of trust and authority exists between the two parties. Examples of these relationships include employment, teacher-and-student, and so on. Where the offender holds power over the victim and used it to coerce the victim into engaging in sexual activity through threats or some other means, that is relevant to a case. The abuse of such a relationship is considered an aggravating factor that entitles the offender to a stronger sentence for their crime.

How Can a Person be Charged with Sexual Assault if the Complainant Consented?

Consent must be ongoing and clear in any sexual situation. A person may initially consent to sexual activity and change their mind during it. If that is communicated to a partner and the activity continues, a sexual assault will have been committed. Consent must also be established as the activity changes in nature or escalates. Partners must also be aware of each other’s body language as that is an acceptable indication of consent.

A defence may be raised that a person accused of sexual assault may have had an honestly mistaken belief that they had consent.  The defence applies where a person can satisfy a judge that there is an air of reality to the idea that they took all the steps a reasonable person would take to verify that they had consent. If the judge agrees that an air of reality is present, they must then consider the credibility of the victim’s and accused’s testimony before them to determine if consent actually existed in the circumstances.

What is Disclosure and How is it Created?

Disclosure is the process through which the Crown shares all the information that may be used against an accused to secure a sexual assault conviction. Disclosure is composed of some pieces of information that is common to all offences including the accused’s criminal background check and the statements of the complainant and any witnesses to the offence. Of particular importance to sexual assault cases is the complainant’ statement. Any other evidence of the offence, including but not limited to the types discussed in the section above is also provided to the accused.

The process for creating a disclosure package begins at the police station in London once a resident has been arrested. The police compile all the relevant information set out above in a file, typically over the course of a month and send it to the Crown for them to complete the next stages of the process. The Crown then begins vetting the file to remove any personal, identifying, or sensitive information of the complainant or any witnesses that the accused should not have access to. Due to the intimate and sensitive nature of sexual assaults, and the fact that the accused is entitled to some of this information because of its relevance to their ability to make a full defence, this process can be complicated and time-consuming. Once a file has been vetted, the Crown begins screening the file which is when they develop a position on what the appropriate sentence would be for the offence if the accused were to plead guilty tomorrow. This whole process usually takes several months to complete before the package is made available to the accused.

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Recent Cases

R. v. S.R., 2023 ONSC 351

The Ontario Superior Court of Justice case of R. v. S.R. is an example of a sexual assault committed in the context of an exploitative relationship. The facts of the case revealed the victim, who was 16 at the time, had recently reconnected with the offender, who she believed was her biological father, after being raised in foster care. The victim moved in with the offender after leaving her adopted parents. There were two main incidents of assault. The first occurred after the victim and offender had been drinking and smoking weed. The second assault that happened two days involved sexual touching, after which the victim fled and sought help. The offender maintained that the activities were consensual.

The judge ultimately convicted the offender of sexual assault and a breach of an existing probation order.  The determining factors in this decision were that the judge could not accept the offender’s testimony on the basis that he stopped the first assault prior to sex because of the medical evidence available. His testimony also became inconsistent over time. Most importantly though, the judge concluded, “the accused is legally barred from relying on any ostensible consent by SB given his position of trust and authority. On March 1, 2021, SB was a vulnerable 16-year-old. Having grown up in an adopted family, she hoped for a father-daughter relationship with the accused. He provided shelter when she was homeless. He was some 22 years her senior. He also knew that she was under the influence of drugs and alcohol. In these circumstances, any apparent consent is barred by the operation of s. 273.1(2)(c) of the Criminal Code, which states that no consent is obtained where the complainant is induced by an abuse of a position of trust, power, or authority. That is this case, at a minimum” [at para 119].

R. v. Valley, 2023 ONSC 166

The Ontario Superior Court of Justice case of R. v. Valley demonstrates that the principle of sentencing that seeks to rehabilitate offenders has its limits. In this case the offender was convicted of sexual assault, unlawful confinement, and breach of a probation order. The offences occurred after the offender visited a restaurant that he was legally unable to attend under the orders of a probation order. The victim was working at the restaurant alone. After the offender asked for the victim’s phone number and did not leave the location, the victim attempted to call the police. The offender managed to get behind the counter and grabbed the victim from behind and interrupted the call. He choked the victim, pulled down her pants and exposed himself. However, the victim managed to break free and seek help.

Of importance here was the fact that the offender stated he had no family and little plan following his sentence. He also had a lengthy criminal record that included several violent offences. The judge characterized his chances of rehabilitation as, “dubious.” [at para 38] At the same time, a chance still remained, and the principle must be considered. The final sentence reflected both the severity of the offences and accounted for the time the offender was incarcerated while awaiting sentencing and the conditions of that service during the COVID-19 pandemic. From the total five-year imprisonment sentence, the offender only had to serve an additional 23 months. There was also a three-year probation order made in addition to a lifelong weapons prohibition, a DNA order and a SOIRA order.

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

The Ontario Court of Justice case of R. v. B.M. is an example of specific aggravating factors that are at play when the victim of a sexual assault is a child. The offender in this case was a long-time employee of a family business. The victim was the owner’s daughter who developed a crush on the offender when she began working at the business at 12. The offender began making sexual advances and the assaults occurred when the victim was 15 and the offender 34. Each assault occurred on the business property or during business activities and included unprotected sex. Both parties agreed to keep the events quiet.

The offender pled guilty to the offence, which is a factor that mitigates, or lessens, punishment. However, there were several aggravating facts that led the judge to impose a harsh sentence. The judge departed from the recommendation of both the Crown and defence for an imprisonment sentence of two years less a day. Three years imprisonment, a weapons prohibition and DNA and SOIRA orders were opted for instead. In arriving at this independent conclusion, the judge highlighted that the offender abused a position of trust they had with the victim because of their employment. Furthermore, the offender knew his actions were wrong, knowingly engaged in unprotected sex and instructed the victim to keep quiet. These factors clearly outlined that a strong punishment was necessary.

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.