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Defend Sexual Assault Charges

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Our Experience

Sexual assault is a criminal offence that encompasses a variety of conduct that can have a wide range of serious impacts on victims. Recognizing this, the York Regional Police have developed a program that educates the residents of Newmarket and beyond on the best way to report a sexual assault when considering the circumstances of the offence. Statistically the most recent data, from the YRP 2019 Annual Report, indicates that there were 791 incidents in that year, which was an increase from 669 in 2018.

In R. v. Y.F. [2021], Donich Law represented a client charged with assault for allegedly choking a friend, and sexual assault. The Firm hired an expert witness to refute the Crown’s theory that the complainant was incapacitated at the time of the sexual activity, causing the Crown to abandon that argument. Ultimately, the accused was acquitted at trial. Like many sexual assault cases when the Crown has a strong theory, the accused was required to testify. His evidence combined with the fact that the complainant was caught embellishing her evidence resulted in the acquittal.

In 2022, the Firm successfully defended an individual charged with sexual assault, assault with a weapon, assault, assault (choking), and cruelty to animals in R. v. A.B [2022]. The accused was alleged to have physically abused his family on several occasions’ years prior. Shortly after being arrested, he was convicted and sentenced to a lengthy prison sentence for similar related offences. With the Crown seeking a lengthy penitentiary sentence, the Firm set the matter down for trial. Due to significant Crown delay, the Firm launched an 11(b) argument, stating that the court had violated the accused’s right to be brought to trial within a reasonable time. The argument ultimately led to the Crown agreeing to significantly lower their position and to a withdrawal of the charges.

In R. v. D.P. [2021], the Firm represented an individual charged with sexual assault after he allegedly touched a friend sexually without consent. The Firm negotiated with the Crown for close to two years and arranged for the accused to undergo a psychological assessment to demonstrate that he suffered from underlying mental health issues. Ultimately, the Firm secured a withdrawal of the charge. For this type of resolution, Deputy Crown approval is required. There is now a checklist Crown Attorney’s must follow before withdrawing a sexual assault charge which includes victim input and Crown management consent.

In 2021 the Firm defended R. v. C.B. [2021], where the client was charged with sexual assault after a dispute with his ex-spouse. Donich Law strategically proposed a s.276 application which would entitle the complainant to independent legal counsel. The Firm also uncovered evidence that the complainant had previously made false allegations of abuse related to matrimonial affairs. The Firm was able to secure a withdrawal of the charge after the complainant was unwilling to testify at trial. The Crown was aware of these weaknesses, however, the defence was required to set the matter down for trial and achieved this result on the eve of trial.

Common Sexual Assault Defences used by Lawyers

Donich Law - International Child Pornography Investigations we have Defended

In the Firm’s R. v. M.Z. [2020], it defended the owner of several restaurant franchises in Toronto. It was alleged he was using his power to commit a sexual assault on a younger employee. He was charged with forcible confinement, for inviting the employee in his office and locking the door. It was at this point she allegedly sat on his lap and the sexual assault was committed. When the complainant testified, the Firm was able to prove through cross-examination, that she lied with the intention to embellish her evidence. This was fatal to the Crown’s case and her credibility on the stand. The court noticed this and considered her evidence along with that of the accused which led to the acquittal of all charges.

In January 2020, Donich Law achieved a further acquittal of a sexual assault charge in its R. v. K.H. [2020]. The accused a prominent businessman from the U.S. allegedly sexually assaulted the complainant he did not know in a hotel room when she was sleeping. Both parties were not Canadian Citizens with the proceedings to be scheduled remotely. The Crown initially applied for a Daville adjournment, because the Crown was unprepared for the trial. Although initially successful, the defence was able to succeed the following day where the Crown’s case fell apart.

New Changes to Sexual Assault Laws in 2024

In 2022, the Firm successfully defended an individual charged with criminal harassment, sexual assault, uttering threats, and assault in R. v. R.V. [2022]. The client was charged after his ex-intimate partner alleged that he had sexually and physically assaulted her while the two were residing together. The complainant further alleged that she was threatened by the accused and that once she ended the relationship the accused repeatedly contacted her despite her asking him not to. The Crown initially sought a lengthy period of incarceration upon conviction. The client completed up front work and the Firm engaged in just under a year and a half of Crown negotiations before resolving the matter without a criminal record and securing the withdrawal of the sexual assault charge.

In 2022, Donich Law successfully represented the complainant in a sexual interference, invitation to sexual touching, sexual assault, and incest case in File No. ****97 [2022]. Prior to hiring the Firm, the complainant had made allegations of sexual abuse against a family member, leading to his arrest. The accused was facing eight years in prison. After the arrest, the complainant began having significant recollection issues and no longer wished to proceed with the case. As a result, she hired the Firm. The Firm worked with the accused’s counsel to develop a united defence, pointing out issues with the Crown’s case. Ultimately, all charges were withdrawn.

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Frequently Asked Questions

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.

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Recent Cases

R. v. F.A., 2022 ONSC 5696

The Ontario Superior Court of Justice case dealt with an offender who committed a serious sexual assault. As part of a series of events, the offender was convicted of uttering threats, sexual assault, and incest. The victim was the offender’s biological adult daughter. The context of the offences was that the victim had moved in with the offender while looking for a permanent home. The two were never close but decided to stay in and socialize together one night. They had been drinking and an argument started which led to the offender threatening the victim. Fearing for her safety, the victim called 911, was taken to the hospital, but returned home once she believed she would not be seen by anyone. When she returned, she was sexually assaulted by the offender despite not consenting.

The offender was sentenced to five years imprisonment. A 10-year weapons prohibition was issued along with a DNA and SOIRA order. Of particular importance in this sentencing decision was the fact that the victim was financially dependent on the offender and that the parental relationship is one of trust. Combined with the fact that the offender engaged in the contact despite a clear lack of consent, the court determined that severity of the conduct meant there were no meaningful mitigating factors that the offender could rely on to lessen his punishment.

R. v. Thomas, 2023 ONCJ 204

The Ontario Court of Justice case of R. v. Thomas concerned an offender who was convicted of sexual assault and a breach of trust in their role as a correctional officer. The circumstances of the offence were that the offender sexually assaulted the victim, a prisoner, in the shower. The victim did not express a lack of consent to that activity.

It is important to know that silence is not legally considered consent. When dealing with this issue, the trial judge addressed this point. “I have accepted J.S.’s evidence, that she did not want the sexual contact with Mr. Thomas to happen. I believe that J.S. did not want Mr. Thomas to sexually touch her. I have reminded myself that J.S. need not express her lack of consent for the actus reus of the offence to be established. Consent is not silence, nor is it submission.” [at para 51] Consent is a context-specific concept. No one can assume consent, but especially here, the offender would have had to take extra steps to make sure it existed because the victim had already refused to participate in one form of sexual activity. The same standard would apply to anyone in a similar situation.

R. v. Guimond, 2023 NUCJ 14

The Nunavut Court of Justice case of R. v. Guimond explores the sentencing process for sexual assault when the victim of the offence is under 16 years of age. In this case the offender was charged with sexual assault, indecent exposure, and sexual interference. The offence was committed after the nine-year old victim and her mother visited the offender and his common law partner. In the evening, the mother left the victim asleep on a mattress in the bedroom, while the offender’s partner was asleep on the main bed. The offender came into the room, laid down next to the victim and sexually assaulted her.

The principles relevant to sentencing in this case were the denouncing of the criminal conduct and deterring others from behaving similarly. Also of special consideration was the age of the victim and the fact that she was an Aboriginal girl, an especially vulnerable group of people. All sentences must also be designed to help rehabilitate the offender but given the predatory and intentional nature of the offence, that goal was secondary. The offender was also an aboriginal person, which entitled him to special consideration, but given the fact that he had a lengthy criminal record, it was mostly cancelled out. Overall, the offender was sentenced for sexual interference and given one year imprisonment and probation. Additional DNA and SOIRA orders were also issued. The offender was also subject to an order restricting their access to children.

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.