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Defend Sexual Assault Charges

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Our Experience

Donich Law has experience defending first time offenders charged with sexual assault including individuals with underlying mental health issues. The Firm has successfully represented clients charged with minor assaults as well as individuals charged with violent sexual assaults. We have represented clients in both the Ontario Court of Justice and Superior Court of Justice in Peel Religion and across Ontario.

In 2021, the Firm represented a client charged with one count of sexual assault in R. v. D.P. [2021]. The client was arrested after a friend alleged that he had touched her inappropriately without consent. After reviewing the case and speaking with the accused, the Firm raised concerns about the accused’s mental health. He underwent a psychological assessment which uncovered underlying mental health concerns. This evidence was presented to the Crown who agreed to withdrawal the charges given the circumstances of the assault.

In 2017, the Firm represented an individual charged with historical sexual offences including sexual assault and sexual interference in R. v. M.M. [2017]. The charges stemmed from an alleged incident that occurred in 1977. As a result of the lack of statute of limitations on sexual assault charges, the accused was charged and brought to trial 40 years after the alleged incident occurred. The Firm litigated the matter for more than three years before securing a withdrawal of the charges.

Sexual assault is a broad offence that covers a wide range of conduct. It can have a profound impact on the lives of victims. The Peel Regional Police has collected several statistics on this topic for the area they serve, which includes Mississauga. Although, they categorize sexual assaults into a broader category known as sexual violations. Between January 1 and April 30 of 2023, the PRP have documented 389 reported sexual violations. That same period in 2022 produced 363 incidents and a full-year total of 1,149. More in-depth numbers from 2021 indicate a total of 1,067, and when adjusted for population, there were 71.3 sexual violations per 100,000 people.

In addition to defending first time offenders and those with a prior criminal history, the Firm also has experience defending individuals charged in historical sexual assault cases. In Canada, sexual assault is a hybrid offence. This means there is effectively no statute of limitations, allowing the police to lay charges against an accused years or even decades after an alleged assault occurred. Historical sexual assault charges can be both hard to prosecute and hard to defend. Due to the amount of time that has passed, evidence including the memories of the parties have faded. This often further complicates already complicated cases.

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In 2016, the Firm represented a TTC driver who was charged with several different sexual offences including luring in R. v. A.H. [2016]. The Firm gathered evidence including Affidavit evidence from the complainant using third party counsel. The evidence gathered from the alleged complainant suggested that the allegations had been fabricated. The complainant confirmed in her affidavit that she had erroneously made the allegations against the accused during a falling out with her parents. The charges against the accused were stayed.

Donich Law also has experienced defending individuals charged with historical offences. In 2019, the Firm represented an individual accused of committing a sexual assault and other offences more than 30 years prior in R. v. A.E. [2019]. The Firm launched an investigation of its own into the matter and uncovered evidence of a family dispute over a large sum of inheritance money. The Firm was able to prove, through its own investigation, that the complainant had falsified the allegations in an attempt to take control of the inheritance assets.

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In 2021, the Firm successfully defended a client charged with assault and sexual assault in R. v. C.B. [2021]. The client and complainant had been married and had gone through a tumultuous separation. The alleged assault stemmed from a domestic dispute that became physical. While reviewing disclosure and collecting independent evidence, the Firm uncovered previous reports of domestic abuse leveled by the complainant which turned out to be false. The Firm leveraged the previous false reports, casting doubt on the current allegations, ultimately securing the withdrawal of the sexual assault charge.

The Firm has experience defending both first time offenders and repeat offenders. We have represented clients charged with minor offences including a butt grab or unwanted kiss. We have also defended individuals charged with serious violence sexual offences including sexual offences involving children and where a weapon was used.

In 2022, the Firm represented an individual charged with numerous offences including sexual assault, assault choking, cruelty to animals, assault with a weapon, among other offences, in R. v. A.B. [2022]. The accused was alleged to have assaulted his domestic partner as well as his children and the family dog. After significant Crown delay in getting basic disclosure items to the defence, the Firm launched a section 11(b) Charter challenge, arguing that the Crown was violating the accused’s right to a trial within a reasonable time. The 11(b) challenge led a significantly reduced offer on penalty. The accused ultimately avoided a significant penitentiary sentence, instead pleading guilty to simple assault.

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Frequently Asked Questions

Can a Victim’s Sexual History be Used as Evidence in Sexual Assault Cases in Mississauga?

Typically, a victim’s sexual history is not admissible evidence that can be raised as an issue in sexual assault cases. There are some exceptions to that rule, but there has been a recent shift in thinking that now protects people from being judged on their past behaviour simply because they have become the victims of a serious criminal offence. This development comes from a better understanding of the myths surrounding sexual assault.

One such myth is that once a person has consented to one form of sexual activity, they will be considered to have consented to it forever. That is not true. Consent is always revocable and depends on the circumstances of the event. Other myths suggest that people with more varied sexual histories are more likely to consent to sexual activity by default, and that their histories undermine the credibility of the testimony they provide as a witness. Dispelling these myths is an important step in attributing responsibility to offenders and helps the law evolve beyond outdated ideas like that which claimed married partners could not rape each other. This specific example was the law until 1983.

What is the Exception to that Rule?

There are exceptions where a victim’s sexual history is admissible, and they are used when that history becomes a genuine issue at trial. The exceptions are governed by two provisions of the Criminal Code, ss. 276 and 278.2. Section 276 sets out that the exceptions are only used where the history is not used to undermine the testimony of the victim, is relevant to the trial, demonstrates specific sexual activity of the same kind as that at issue and where its value is worth more than potential damage to the victim. The rationale behind this exception includes that it will encourage the reporting of sexual assault offences, will allow offenders to fully defend themselves with all relevant information, and allow for the correct decision to be at trial.

Section 278.2 allows a record to be produced for the accused that contains relevant information under certain conditions. The applications must be made by defence counsel in writing and set out the specific evidence that production is being sought for and who has that evidence in their possession. The evidence that may be produced because of this written application depends on the facts of the case, but might include a record of communication (texts, DMs or other messages), or relevant medical records.

What Kinds of Evidence is Typically Used in Sexual Assault Cases?

Many sexual assault cases rely on the testimony of the parties involved, the victim and the accused. This can lead to difficulty and produce he-said-she-said situations where judges must compare the persuasiveness of the testimony they hear. That is why other types of evidence are valuable.

Other common types of evidence in sexual assault cases include victim or witness statements collected by the police. Witness statements may come from people who saw either party after the alleged offence occurred, or from the police responding to the issue themselves. Furthermore, it is possible for the defence to call anyone they wish as a witness, but their testimony will be carefully examined. Aside from testimony, records of communication may be relevant evidence, as will any videos made of the event. And if expert testimony is needed on some issue, such as a medical point, that may be allowed as well.

What is the Role of the Victim in Sexual Assault Cases in Oakville?

Victims of sexual assault, in Mississauga or elsewhere, receive more consideration than victims of most other criminal offences in Canada because of the seriousness of the crime and the personal impact it can have on someone’s life. However, once a charge is laid and the matter is turned over to the Crown, victims lose most of their ability to influence proceedings.

It is standard for the Crown to run a sentencing position past a victim once an offender has either pled guilty to the offence or been convicted after a trial. If the victim feels that the sentence is deeply flawed and imposes insufficient punishment, the Crown may revise their submission. This is not a guarantee. Beyond this, the victim can also play a role in the sentencing process by providing a Victim Impact Statement to the court that describes how the offence has impacted their life. Victims are granted the right to do this under the Victim’s Bill of Rights. The judge would then take the statement into consideration before coming to a final decision on the appropriate sentence.

What is the Difference Between Joint Position and Open Sentencing?

Joint position and open sentencing describe the two types of sentencing procedures found in Canadian law. Joint positions occur when the Crown and the defence have similar ideas on what an appropriate sentence would be based on the facts and evidence surrounding a specific case of sexual assault. Usually when there is a joint submission, a judge will use it as a strong guide for their final sentence. However, joint submissions can be ignored if the judge is of the opinion that the position is so unhinged from reality that a reasonable person would believe the sentence would bring the administration of justice into disrepute. Put simply, a judge will disregard any joint position that would conceivably undermine the public confidence in the criminal justice system.

Open submissions occur where the Crown and defence have different ideas on sentencing. At that point, they make submissions to the judge that rely on any aggravating or mitigating factors present in the case that suggest a punishment should be more, or less, strict respectively depending on the balance of those factors. After hearing open submissions and asking any necessary questions, a judge’s decision will usually fall somewhere in the middle of the two positions.

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Recent Cases

R. v. Thomas, 2023 ONCJ 204

The Ontario Court of Justice case of R. v. Thomas dealt with an offender charged with sexual assault under s. 271 of the Criminal Code breach of trust in their role as a correctional officer contrary to s. 122 of the Code. The case hinged on whether the claims of the victim or the offender were to be believed. The victim claimed that the offender cornered her the shower of the prison and asked for sex. After the victim refused, the offender then dropped his pants and engaged in a sexual act. The offender asserted that the victim initiated the interaction, and the activity was consensual. Importantly, it was found as fact that the victim did not express her lack of consent after refusing to provide sex, but the law does not require her to do so.

The case demonstrates how competing testimony is dealt with in sexual cases. The judge found the victim’s testimony to be more credible partially because parts of it could be confirmed using security camera footage. On the other hand, the offender’s testimony was evasive, illogical at times and internally inconsistent. The relative strength of the victim’s testimony and the weakness of the offender’s was a key factor in the judge determining that the offender had committed the two offences.

R. v. Hillier, 2023 CanLII 41441 (NL PC)

The Provincial Court of Newfoundland and Labrador case of R. v. Hillier demonstrates that unwanted sexual touching can lead to a conviction for sexual assault. In this case, the conduct at issue occurred in the workplace.

There were several important factors that led to the imposition of a 90-day sentence of imprisonment and a year of probation. First was the offender’s lengthy criminal record that included several convictions for assault, a conviction for mischief and a history of breaching court orders. Second, was the circumstance of the offence. It occurred in the workplace when the victim was in a vulnerable position. The offender also had seniority to her and was old enough to be her father. These were serious aggravating factors that clearly showed a harsher sentence was necessary. In addition to imprisonment, DNA and SOIRA orders were made and a victim surcharge of $100 was levied.

R. v. Diakite, 2023 MBCA 42

The Court of Appeal of Manitoba case of R. v. Diakite explores an issue surrounding a victim’s sexual history and the admissibility of evidence. The case revolved the offender and the victim, two young people who had been in a relationship. The victim had been housesitting at an apartment with two friends and invited the offender over. They went to a bedroom and engaged in consensual kissing, but the complainant did not want to engage in further activity. The offender did not honour that boundary and had sex with the victim. Based on the evidence and the testimony of the victim and her friends, the offender was convicted of sexual assault at trial.

The issue the offender raised on appeal concerned whether the Crown could rely on the evidence that the victim was a virgin. It was argued that the inclusion of the evidence violated s. 276 of the Code. The Court disagreed and dismissed the appeal, finding that the inclusion did not engage the protective purpose of s. 276. Instead, the court determined that the evidence of the victim’s testimony gave insight into why she declined to consent. “Further, the evidence of the complainant’s virginity was admissible for several purposes unrelated to the prohibited inferences in Seaboyer and section 276(1):  to provide the complainant’s explanation for not wanting to have sex with the accused” [at para 19].

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.