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Defend Sexual Assault Charges

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A sexual assault conviction can have serious implications on an individual’s life. In addition to the criminal sanctions imposed, including jail, those convicted of sexual assault will also have other restrictions placed on their freedom, in the form of ancillary orders. An ancillary order is an order made by the court during sentencing. For example, the court may impose a period of incarceration as well as various ancillary orders, which can seriously restrict the offender’s life for a period of time. Ancillary orders commonly issued in sexual assault cases include SOIRA orders, DNA orders, weapons prohibition, and restrictions on access to children.

The case of R. v. Y.F. [2021], the Firm successfully defended a client charged with several offences including sexual assault and assault – choking. The accused and complainant were friends who had met during their first year of university. The complainant alleged that after a night out, the accused had forced himself on her. The Firm took the matter to trial, utilizing expert evidence to defend the allegations. After a seven day trial, the accused was acquitted of sexual assault and choking, resolving the matter without a criminal record.

In 2020, the Firm represented an American businessman who was accused of sexually assaulting a young woman while on a trip to Toronto in R. v. K.H. [2020]. Both the accused and complainant resided outside of Canada, further complicating matters. The Firm defeated the charges on the first day of trial, securing an acquittal for the accused. This result was achieved by defeating a Darville adjournment request by the Crown. In some cases where the Crown is unprepared on the day of trial, they may attempt to reschedule to a more favourable time, which could increase their odds of success. Naturally, this produces prejudice to the accused who is entitled to their day in court without delay.

Sexual Assault Trial Challenges

Sexual assault is a serious criminal offence. Victims of sexual assault are not limited to any one gender or age group. From the beginning of 2023 through the end of May, mapping services provided by the Durham Regional Police has recorded 95 reports of sexual violations (including sexual assault) in Oshawa alone. A total of 283 violations were reported in the municipality in 2022. Understanding that sexual assault can define a wide range of behaviour that can have life-altering impacts on victims, the DRPS has compiled several resources to help victims in their time of need.

Donich Law has experience representing victims of sexual assault offences, including individuals who have made a formal statement to law enforcement but no longer wish to continue with the prosecution. Due to the nature of sexual assault charges, Crown’s are often reluctant or unwilling to cease prosecution, even where the complainant does not wish to continue. In some situations, the Crown may be able to prosecute an individual without the assistance of the complainant at trial. Donich Law has assisted complainants who no longer wish to continue with the process.

Common Sexual Assault Defences used by Lawyers

Donich Law - International Child Pornography Investigations we have Defended

In the case of R. v. S.H. [2022], the Firm represented a client who was the alleged victim in a sexual assault case. The client had made allegations of sexual assault against a family member, resulting in his arrest. Due to memory issues and a lack of willingness to participate in the court process, the client later wished to retract her statement and cease participation. Due to the nature of the offence, the Crown was reluctant to withdrawal the charges and cease prosecution. The Firm assisted the client through the court process, providing legal advice on her rights and obligations throughout the process, ultimately resolving the issue for the client.

In 2016, the Firm represented an individual charged with several sexual related offences involving children in R. v. D.N. [2016]. The Firm engaged in an investigation of its own, collecting evidence to be used at trial. At trial, the Firm cross-examined the complainant, proving they were not being truthful about the allegations. At the end of the trial, the accused was acquitted of several offences including sexual interference, sexual assault, and invitation to sexual touching.

New Changes to Sexual Assault Laws in 2024

In 2018, the Firm successfully represented an individual charged with multiple offences including sexual assault and forcible confinement in R. v. S.L. [2018]. The victim and accused worked together at a restaurant. During one of their shifts, the complainant alleged that the accused trapped her inside the staff washroom and assaulted her. It was later discovered that the parties had been having a secret affair with one another prior to the alleged assault. Wishing to introduce evidence of the previous relationship, the Firm launched a section 276 application to allow such evidence to be heard by the court.

In addition to strictly criminal sexual assault cases, the Firm also has experience defending civil sexual assault cases. Where an allegation of sexual assault has been made, the complainant can choose to report the allegation to police and have the accused arrested, or they may launch a civil lawsuit against the accused for damages. In some cases, the complainant may choose to do both. Where the complainant goes to the police first and the accused is convicted of the offence, the criminal court decision may be used against the accused during the civil lawsuit. Since the burden of proof is much higher in criminal cases, a loss in criminal court will often lead to a loss in civil court.

In civil sexual assault cases, victims, known as plaintiffs, often sue to large sums of money, sometimes in the millions. The issues raised in a civil sexual assault trial are often similar to those raised in a criminal sexual assault trial. The major difference being the penalty faced by the accused/defendant when they are convicted or lose their civil case. Due to the high stakes associated with a sexual assault allegation, it is important to seek advice from experienced legal counsel if you have been accused.

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Frequently Asked Questions

What is Reverse Disclosure in Sexual Assault Cases?

Reverse disclosure is a process where the Crown, through the complainant, provides the accused with any evidence that was not included in initial disclosure that is required for them to mount a full and complete defence. The intimate nature of sexual assault cases often leaves little evidence of the offence aside from the testimony of the accused and the victim. Reverse disclosure can help fill that gap.

The process is governed by s. 278.2 of the Criminal Code. Under that provision, the accused can make a written request for a record that they know to be in possession of the victim, or someone associated with them that is necessary for their defence. This record could include texts or other messages between the two parties that relate to the offence, or medical records stemming from the incident from a doctor or psychiatrist’s office. It is important to remember that this record must relate to a genuine issue of a case and in accordance with s. 276 of the Code, it cannot discuss the sexual history of the victim, or be used to undermine their credibility.

What Interrogation Tactics do the Police Use in Oshawa?

As mentioned above, sexual assault cases often produce limited evidence beyond the complainant’s statement and testimony as well as that of the accused. This lack of hard evidence leads the police to want to acquire more if they can. An example of this desire can be shown where a person in Oshawa has been arrested for sexual assault. As part of the interrogation the police tell the individual that now is the best chance to be honest and tell their side of the story. This coaxing of information out of the accused because it may help them later is simply an attempt to have the accused volunteer information that can be used against them later.

Police can use a variety of other tactics during an interrogation as well. This includes lying about the evidence they already possess. Officers may also try to frighten the accused by playing up the taboos associated with becoming known as a sexual offender. One popular example of this is the idea that convicted rapists and other sexual offenders sentenced to jail time are often beaten or otherwise abused by other inmates. While some of these techniques are underhanded, it is important to know that one justification for them is that any information acquired by the police can reduce the need for a trial and the chance of greater exposure and harm to the victim.

What are the Differences Between Civil and Criminal Law Regarding Sexual Assault?

A person can be held both criminally and civilly liable for a sexual assault. Where the Crown would handle a criminal matter and the case against an accused; a victim, known as a plaintiff in civil law and their lawyer would have to bring a case to a civil court against the alleged offender and sue them for committing the tort of battery. In criminal law the burden of proof upon which the Crown must establish that an offence occurred is beyond a reasonable doubt. However, civil courts dictate that a plaintiff need only to establish a tort on the balance of probabilities. This means that it is more likely than not that an offence occurred.

If the person accused of sexual assault is convicted in a criminal court, their civil liability is guaranteed. The issue in a civil case then becomes the amount of personal damage or loss experienced by the plaintiff as a result of the offender’s actions. Once that is established, a court will issue a monetary damages award as compensation for the assault.

What are the Implications of a Historical Sexual Assault?

The seriousness of sexual assault offences makes them one of the most commonly prosecuted historical offences in the Canadian legal system. Often, the traumatic memories of a sexual assault are repressed by a victim. As time goes on and the victim recovers through therapy or other means, their memory of the events around a sexual assault may return. They may also finally feel comfortable enough to pursue holding the offender accountable for their actions. At that point, the victim has a choice to make if they wish to attribute legal responsibility. They may wish to bring the allegations to the police and start a criminal proceeding, commence a civil lawsuit against the offender or both.

There is no effective limitation period in either criminal or civil law that prevents cases of sexual assault from being brought after a certain amount of time has passed since the event. The issue for the victim then in deciding how to proceed is based on the strength and reliability of the evidence they have of the offence. As mentioned above, the standard for finding an offender liable is lower in a civil court than a criminal one. This means that a victim may find it easier to satisfy a civil judge that the assault is more likely than not to have occurred, than to meet the higher criminal burden of proof.

How has the #MeToo Movement Impacted Sexual Assault Cases in Oshawa?

The #MeToo movement has helped drive a cultural shift in how people view and talk about sexual assault. Certain myths around sexual assault are no longer believed. We now understand that victims of sexual assault should not be expected to respond in the same ways. Trauma responses are very personalized. We understand that the context of each individual relationship and the power dynamics between the people in them are key factors in how victims respond to sexual assault. We also understand that the sexual history of the victim is not relevant to a sexual assault. It is understood that consent is an event-specific concept that must be acquired each time sexual activity is engaged in.

This shift extends to criminal law in many ways. As mentioned above, s. 276 of the Code prohibits the sexual history of the accused. This is part of a larger trend of criminal procedure beginning to deemphasize the long-believed myths of sexual assault. While there is still much progress to be made, courts are more aware of the hardships faced by victims and have attempted to address them. It is now rare for judges to actively participate in sexual assault cases, as they will rely on the evidence brought before them. Though many cases are made out only on the testimony of the victim, which can make them more difficult to prove.

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Recent Cases

R. v. Saffarpour, 2022 ABPC 243

The Provincial Court of Alberta case of R. v. Saffarpour, dealt with an offender who pled guilty to a charge of sexual assault. The offence occurred after the offender asked the victim to call a taxi for him while at a train station. The offender made a sexual advance on the victim and continued to do so after he was rejected. In the course of these events, the offender grabbed the victim’s buttocks and inadvertently touched her crotch. As a result of this, a judge conditionally discharged the offender provided that he serve three years of probation and perform 240 hours of community service in the first half of that sentence. He was also ordered to attend any counselling deemed necessary and a DNA order was issued.

One of the most important principles of sentencing is proportionality for harm caused. Sentences must also denounce the criminal conduct, deter others from behaving similarly, and aid in the offender’s rehabilitation. The judge had to strike a balance with the issued sentence between the principles of sentencing and the seriousness of the offence, even though it represented a minor sexual assault. The judge provided the following rationale for the ultimate decision, “I am acutely aware that the conduct of Mr. Saffarpour is serious, and the sentence must give effect to denunciation and deterrence, and that in most circumstances, a conditional discharge would not achieve these sentencing objectives.  Sentencing goals are often in tension.  Although a probation order is primarily a rehabilitative sentencing tool, there can be conditions in a probation order that will give effect to denunciation and deterrence… I find in the specific circumstances of this case, a lengthy probation order (more than twice the length proposed by the Crown, albeit after a proposed four month jail term) with the maximum hours allowed for community service, can give proper weight to denunciation and deterrence while still giving weight to other sentencing principles including rehabilitation and restraint.” [at para 61].

R. v. Englot, 2022 SKCA 129

The Saskatchewan Court of Appeal case of R. v. Englot involved an offender appealing his conviction for sexual assault. The basis for the appeal was the offender’s contention that the trial judge incorrectly found witness testimony as fact despite the witness admitting to memory difficulties. The offender argued that the sexual activity was entirely consensual, though it was found that the witness interrupted it because the victim was unconscious and therefore unable to consent. The appeal was ultimately dismissed.

To establish that a judge determined incorrect fact in support of a decision, it must be proven that the evidence either contradicted those facts or was otherwise incompatible. The appeal court found that the evidence of the witness was not impaired by memory difficulties and that the trial judge explained why he was not persuaded by the offender’s concerns. Cases such as this often confront the inconsistencies of memory, but courts are only concerned about this where there are major conflicting details between the testimony of different parties in the greater context of the case. Where judges adequately address the minor inconsistencies and their thought process regarding them that is not plainly contradicted by the other evidence, no error will be found.

R. v. Guapo, 2022 BCPC 263

The Provincial Court of British Columbia case of R. v. Guapo is an example of a sexual assault case where the only evidence of the offence is the victim’s testimony. The offence occurred in the context of an intimate relationship. The offender and the victim met at a bar and returned to the offender’s trailer. There, the offender engaged in sexual activity despite the victim refusing to consent several times. After that initial event, the victim decided to enter a relationship with the offender because of a lack of experience in relationships and a lack of confidence. The sexual assaults continued during the relationships and the offender became more abusive. Eventually, the victim fled to a safe house and gave a statement to the police.

In determining the credibility of the testimony, the judge noted that there is no assumption that the testimony is correct. Instead, the judge examined the demeanor of the victim while giving testimony and determined that she was fair and composed. It was also found that she was not contradicted when cross-examined by the defence. In fact, much of the defence’s case revolved around pushing the myths of sexual assault. Instead of establishing the offence was not committed, they simply questioned why she would remain in a non-consensual sexual relationship. To that end, the judge found that that myth was the only support for the defence of an honest but mistaken belief in consent, instead of any actual evidence. As such, the offender was convicted of sexual assault.

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.