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Defend Sexual Assault Charges

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Our Experience

Donich Law is a criminal law firm with over a decade experience. We have devoted a significant portion of our practice to defending those charged with various sexual offences including sexual assault. We have successfully defended clients in both the Ontario Court of Justice and Superior Court of Justice in jurisdictions throughout Ontario.

Our lawyers have experience defending complicated cases, including historical cases or cases where there are multiple victims or complex Charter challenges. We have worked with clients from all walks of life and defended everything from an unwanted hug to alleged forced sexual activity, including first time offenders and individuals who have previously spent time in prison for related offences.

In 2022, the Firm represented an individual with a prior criminal history of sexual assault and other violent offences in R. v. A.B. [2022]. The client was charged with numerous offences including cruelty to animals, sexual assault, assault with a weapon, assault choking and other offences after allegedly abusing his partner, two children, and pet dog. Further complicating matters, the accused was already serving a period of incarceration on a similar set of charges in another jurisdiction, stemming from other incidents with the same complainants. As a result of the aggravating factors in the case the Crown originally sought several years in custody. After significant Crown delay in moving the case along, the Firm launched a section 11(b) Charter challenge. The Charter challenge led the Crown to agree to withdrawal all but one charge, avoiding a significant addition to the accused’s prison sentence.

Sexual Assault Trial Challenges

In 2022, the Firm represented an individual charged with multiple counts of assault and sexual assault in R. v. R.V. [2022]. The accused was arrested and charged after his ex-girlfriend made allegations to police about alleged incidents that occurred during the couple’s relationship. The accused denied any wrongdoing, citing their relationship breakdown as the reason the complainant made the allegations. The Firm engaged in more than two years of contentious litigation with the Crown before ultimately resolving the matter without a criminal record for the accused.

In many cases of sexual assault, there are no third-party witnesses to the alleged incident and no DNA evidence. Often, the only evidence available for the court to make a determination in the case is the statement and testimony of the complainant and the accused. During a trial for a sexual assault, the Crown and defence will both call witnesses to attempt to prove their theory of the case. Where the only evidence available is testimony, the court must consider the reliability and credibility of the evidence provided by each witness to determine what actually occurred.

In the Firm’s R. v. R.V. [2022], it successfully represented an individual charged with criminal harassment, sexual assault, assault, and uttering threats. The individual was arrested after it was alleged that he had sexually and physically abused his ex-partner as well as threatened her while the two were cohabitating. It was further alleged that the accused engaged in harassing behaviour after the complainant ended the relationship. The Firm and accused completed a significant amount of upfront work and negotiated with the Crown for over a year. Ultimately, the matter was resolved without a criminal record and the sexual assault charge was withdrawn.

Common Sexual Assault Defences used by Lawyers

Donich Law - International Child Pornography Investigations we have Defended

Orangeville has a relatively low crime rate overall. In 2019, Statistics Canada reported a total of 29 incidents of sexual assault reported in Orangeville. In 2020 that number dropped to 17 incidents, jumping up to 23 incidents in 2021 and 2022. Sexual assault charges in Orangeville and across Ontario are serious and can lead to a period of custody if convicted. On average, more than 40% of offenders across Canada are sentenced to prison following a conviction for sexual assault.

In 2021, the Firm represented a university student charged with assault, choking and sexual assault in R. v. Y.F. [2021]. The accused was charged after his classmate and friend made allegations to police that he had taken advantage of her after a night out. The matter went to trial and both the complainant and accused testified, as well as friends of the complainant and the accused’s roommate at the time. In addition to testimony, the court read text messages exchanged by the accused and complainant after the alleged incident, discussing the allegations. The Crown suggested that the text messages proved that the accused had committed the offence as charged, as he had apologised to the complainant. The trial lasted seven days with a total of five witnesses providing evidence. Ultimately, the accused was acquitted of the sexual assault charge. The matter was resolved without a criminal record.

New Changes to Sexual Assault Laws in 2024

In addition to complex sexual assault cases, the Firm also has experience defending individuals charged with historical sexual assaults. In Canada, sexual assault is considered a hybrid offence meaning it can be prosecuted either by summary conviction or by indictment. Where the Crown proceeds by indictment, there is no statute of limitations. This means that the police can lay a sexual assault charge, and the Crown can prosecute it, years or even decades after the alleged incident was said to have occurred.

In 2018, the Firm represented an individual charged with numerous sexual assault charges stemming from incidents from more than 20 years prior in R. v. D.D. [2018]. The accused individual denied the allegations and set the matter down for trial. The Firm launched an investigation of its own in preparation for trial and uncovered evidence to prove that the complainant had fabricated allegations of sexual abuse about another individual in the past. The Firm cross-examined the complainant on this at the trial, exposing credibility and reliability issues with the evidence provided by the complainant. After several days of trial, the accused was acquitted.

In 2017, the Firm represented a real estate agent accused of sexual assault in R. v. Y.E. [2017]. Before charges were laid, the Firm spoke with the officer in charge and provided evidence showing that the encounter was consensual. The Firm utilized a sex tape the parties had made of the sexual encounter. The videotaped evidence showed that the interaction was in fact consensual, and the police declined to lay charges against the accused.

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Frequently Asked Questions

Are There Limitations to an Accused’s Ability to Challenge the Complainant During a Sexual Assault Trial?

There are some limitations to what the defence can cross-examine the victim of a sexual assault on at trial. First, a cross-examination should be limited to what the victim has provided as testimony, the original statement they gave to the police, or any other evidence that they can speak to. The role of cross-examination is to determine the credibility or truthfulness of a victim, and the reliability of their memory. By questioning the victim, the defence can expose any major discrepancies in their account of the offence as given to the police and the testimony they gave in court. Furthermore, if an offence involved an intoxicated victim, or there is other reason to believe their memory might be faulty, a cross-examination might lead a judge to question the reliability of the testimony, which may in turn lead to a finding that the accused is not guilty of the offence.

The second limitation on challenging the victim concern’s their sexual history. Under s. 276 of the Criminal Code, the sexual history of the victim cannot be used at trial to suggest that they consented to the conduct at issue. Courts no longer place any stock in the idea that past consent implies consent in the present. Instead, it is understood that consent is an event-specific concept that can be revoked at any time. Therefore, using the victim’s sexual history to undermine their credibility as a witness is not allowed.

Should the Accused Speak to the Police About the Sexual Assault in Orangeville?

A person arrested for sexual assault in Orangeville should not speak to the police regarding the assault beyond confirming their identity. Our lawyers would advise any accused person to exercise their right to remain silent. There is often limited evidence available in sexual assault cases. Cases will regularly proceed on the victim’s police statement and the testimony they give at trial. As noted above, that testimony is subject to cross-examination, which will attempt to expose any weaknesses in the Crown’s case.

If an accused gives a statement to the police, that becomes admissible evidence at trial. It is also subject to cross-examination and the same scrutiny as above. The judge will then have to determine which version of events is more credible. Therefore, the less the accused says to the police upon arrest or during interrogation, the better because then there is less information that could potentially be used against them.

Will the Complainant Receive Money from the Offender?

The victim may receive a small amount of money from the offender if the judge ordered a victim surcharge to be paid. The amount of that surcharge is equal to 30% of any fine the offender receives as part of their sentence, or is a flat amount based on the type of sexual assault offence. Lesser sexual assaults prosecuted as summary offences carry a surcharge of $100. An example of this can be seen in the case of R. v. Hillier, where the offender’s assault consisted of touching the victim’s buttocks and making a joke of it while she was bent over. More serious assaults prosecuted as indictable offences result in a $200 surcharge.

A victim will not receive larger amounts of money from the criminal process. As sexual assault is not a crime against property, a court will not issue a restitution order. If the victim would like additional compensation for damages, they can sue the offender in civil court for the tort of battery. If the offender has been criminally convicted, their civil liability will be guaranteed.

Can the Accused Provide Evidence to the Crown in Orangeville?

Yes, it is possible for the accused to provide evidence to the Crown. It can either be introduced by the defence during a trial or given earlier in the process. It is possible for an accused to engage in an informal negotiation known as a Crown Pre-Trial. In this proceeding, that is usually a phone call, the accused either representing themselves, or with the aid of a lawyer such as our counsel in Orangeville, discuss the case against them. At that point, the accused can provide the Crown with the evidence in their possession. The Crown will then add the evidence to the existing file on the matter and assess it. Depending on the strength of the case against the accused, the evidence they provide may convince the Crown to formally withdraw the sexual assault charge.

Is DNA Evidence Necessary to Receive a Sexual Assault Conviction?

DNA evidence is usually not needed for the Crown to secure a conviction for sexual assault. It is not usually included in the evidence package as many victims do not use rape kits or other testing processes to retrieve it. DNA evidence is useful in determining the identity of the offender, but studies have shown that most sexual assaults are committed by someone known to the victim. And as mentioned above, the identity of the accused and the fact that the sexual activity occurred are often admitted as fact during a trial. This means that DNA evidence is often irrelevant. Instead, the issue of consent to the sexual activity is central to many cases.

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Recent Cases

R. v. Albornoz-Vaca, 2022 BCSC 2116

The Supreme Court of British Columbia case of R. v. Albornoz-Vaca is an example of a sexual assault whether the method of the offence constitutes an additional offence. In addition to the sexual assault, the offender was also convicted of attempting to choke the victim during the assault. The facts of the case were that the offender arrived at the victim’s residence that was part of a supportive housing project in a First Nations community. The offender then engaged in unprotected and non-consensual sexual activity with the victim that involved having her neck pushed against the arm of a couch. The victim’s neck was injured by this action, and she had difficulty speaking afterwards.

For the two offences, the offender was sentenced to 35 months imprisonment. DNA and SOIRA orders were also issued, as was a 10-year weapons prohibition. As a Colombian refugee, the offender may also be subject to deportation following his sentence. This sentence is an example of where mitigating factors like no prior criminal record and the offender’s young age do not erase the seriousness of the conduct. The judge highlighted a set of factors that will often lead to stricter sentences. “This sentence takes into account the seriousness of the offence and the injuries suffered by the complainant; the vulnerability of the complainant; the fact the assault took place in her apartment, in supportive housing, which should have been a safe and secure place for the complainant…” [at para 56].

R. v. Hillier (Sentence), 2023 CanLII 41441

The Provincial Court of Newfoundland and Labrador case of R. v. Hillier shows that even minor examples of unwanted sexual touching can lead to sexual assault convictions. This case dealt with an assault in the workplace.

The offender was sentenced to 90 days imprisonment for his conduct and a year of probation. DNA and SOIRA orders were issued, and the offender was made to pay a $100 victim surcharge. The factors leading to this decision included the fact that the offender had a lengthy criminal record that included a history of assault, mischief, and breaching court orders. The circumstances of the offence also lent themselves to this harsher punishment. As the offence occurred in the workplace, while the victim was in a vulnerable position. The offender also held seniority over the victim and was old enough to be her father. All these factors demonstrated that a sentence of imprisonment was necessary, despite the mandate in Canadian law to look to any less restrictive sentencing options first.

R. v. D.M., 2023 ONSC 2151

R. v. D.M. is an Ontario Superior Court of Justice case that involved an offender, their friend and the victim occupying a car in a parking lot at night. The offender and victim were in the back seat, and he forced her to perform a sexual act. A section of the pre-sentence report suggested that even though the offender maintained his innocence, he still downplayed the seriousness of his conduct. This led to a conclusion that the offender did not fully grasp the crucial nature of consent.

This mindset left the judge with little option in sentencing based on the severity of the conduct. Accordingly, the judge rejected the defence’s submission advocating for a conditional sentence. The offender was sentenced to two years imprisonment. Additional DNA and SOIRA orders were also imposed, as was a 10-year weapons prohibition. In comment on this punishment, the judge stated, “I know that this sentence will be very difficult for the offender and his supportive family to accept.  My hope is that they will someday understand that this sentence pays full respect to the importance of rehabilitation and individual deterrence for D.M., given his youthful first-offender status, but that anything less than a penitentiary sentence would simply not be fit” [at para 43].

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.