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.