Sexual Assault Defence Lawyer in Newmarket

What is the New Landscape for Sexual Assault Law?

Before the #MeToo movement, sexual assault cases were dealt with in a very different way. Often, victims were treated with far more skepticism, and it could seem like they would be asked to prove that the offence was committed against them. This was a departure from established procedure where it is the Crown’s role to prove that the accused committed the offence. As a result of this, trials became traumatic affairs that were difficult for victims to participate in without aggravating the harm they had experienced.

Recently, the criminal justice process has become more understanding. Courts no longer operate on the logic of old myths about sexual assault. They are more understanding about the nature of power dynamics in relationships and understand that trauma responses are specific to each victim. There is no expectation now that the victim should behave in the most logical manner possible. Furthermore, a victim’s sexual history can no longer be used to undercut their credibility as a witness. These new developments have been reflected in the Supreme Court of Canada’s handling of recent sexual assault cases. In most of the cases, the court will find against an accused person.

What is Sexual Abuse in Newmarket?

Sexual abuse is a term used in the context of regulated professionals like doctors or other professions that take on patients in communities like Newmarket. Because these professions expect their practitioners to meet a high standard of behaviour, sexual abuse can include behaviour that would not meet the definition of sexual assault under s. 271 of the Criminal Code. Behaviour that may constitute sexual abuse could be something as simple as remarks made to a patient.

For example, the College of Psychologists of Ontario define sexual abuse as, “(3) In this Code, “sexual abuse” of a patient (client) by a member means, Sexual intercourse or other forms of physical sexual relations between a member and the patient (client); Touching, of a sexual nature, of the patient (client) by the member; Behavior or remarks of a sexual nature by the member towards the patient (client). For the purposes of subsection (3), “sexual nature” does not include touching, behaviour, or remarks of a clinical nature appropriate to the service provided.” Each profession mandates its members to report any sexual abuse, consensual or not, and can prosecute offenders using their own disciplinary process. Offenders found guilty of sexual abuse may have their license to practice suspended or revoked based of the severity of the misconduct

What Does “Sexual in Nature” Mean?

Crimes that are sexual in nature are defined in the Sex Offender Information Registration Act as any one or more acts that, “are either sexual in nature or committed with the intent to commit an act or acts that are sexual in nature; and constitute an offence.” This is a circular definition. Essentially, it refers to any criminal offence, like sexual assault, that involves touching for a sexual purpose, violating the sexual integrity of a victim, or any behaviour that is done to achieve those purposes.

How Does the Court Determine Whether Sexual Activity was Consensual?

In many criminal cases, the sexual activity will be admitted by both sides as a matter of fact. The issue that is often left for trial then is whether that activity was performed with all persons consenting. To determine this, a judge will rely on the statements of the victim and the accused. This is not a process where one side is taken as the only true account of what happened. Instead, there is a legal test that allows a judge to decide, based on all the evidence, whether they have a reasonable doubt that the offence occurred.

The test is set out in the case of R. v. W.(D.), 1991 CanLII 93 (SCC). The standard for finding guilt based on testimony is as follows. If a judge believes the testimony of the accused, then that person is not guilty. If the judge cannot decide whether the accused or victim’s testimony is more credible, the accused is not guilty. Even if the judge does not believe the accused, but a reasonable doubt is created by their testimony, the accused is not guilty. Finally, even if a judge completely rejects the evidence of the accused, if they are not completely convinced by the victim’s testimony, the accused is not guilty. The only time an accused mat be found guilty of an offence after having their testimony rejected is if they lied or otherwise fabricated it.

When is There a Lack of Consent in Newmarket?

Consent is defined as a voluntary agreement to participate in sexual activity. This definition applies everywhere in Canada, including Newmarket. This agreement can be communicated verbally or through actions, but it must be affirmative and ongoing in relation to each activity that is performed. Generally, no consent is obtained where a sexual partner is silent on the issue, where the consent is communicated by someone other than the partner, where the partner is unable to consent due to intoxication or unconsciousness, where a person uses a position of authority to induce someone to engage in sexual activity, or where a partner communicates at any point that they do not consent or do not continue to consent to the sexual activity.

Furthermore, consent is not acquired where a person’s belief in it was caused by their own intoxication. Nor where a person did not make the effort to determine if they had consent either because they were reckless or suspected they might not have consent but did not wish to confirm that fact. Finally, a person may rely on the defence of an honest but mistaken belief in consent only if consent would not have been negated by any of the factors above and where the person took all the reasonable steps to determine if their partner was consenting.