DEFEND SEXUAL ASSAULT, INTERFERENCE AND EXPLOITATION CHARGES. 416-DEFENCE.

The Firm has a dedicated practice in defending a range of sexual assault allegations, specifically historical allegations of sexual assault and sexual interference. In August 2017, after 3 years of litigation in its R. v. M.M. [2017], the Firm secured a withdrawal of a historical sexual interference and sexual assault from and allegation in 1977 when the complainant was 5 years old, the allegation was made nearly 40 years later. In its R. v. W.C. [2017], it defended a dated allegation of incest from the complainant’s father from the 1980s. In the Firm’s R. v. Y.E. [2017], it prevented a sexual assault charge from being laid against a prominent Toronto Realtor, after proving the allegation was fabricated in a sex tape. Recently, in the Firm’s R. v. Z.C. [2018], it secured a withdrawal of 11 Sexual Assault and Sexual Interference charges advance by multiple child complainants against a close family member. The allegations were being advanced by 3 separate complainants. Click here for more information on new changes to sexual assault laws in 2021.

In 2021, the Firm represented an accused charged with sexual assault after allegedly assaulting an ex-partner during a domestic dispute in R. v. C.B. [2021]. Donich Law proposed a s. 276 application as a strategic defence which would provide the alleged victim with independent legal counsel. The Firm also discovered false allegations of domestic abuse previously made by the complainant. The Firm participated in roughly 18 months of Crown pre-trials and was able to exploit weaknesses in the Crown’s case to secure a withdrawal.

In 2021, the Firm represented an individual charged with one count of sexual assault and two counts of assault in R. v. Y.F. [2021], after allegedly sexually assaulting and choking the complainant. Text message evidence was tendered, and experts were hired by both the Crown and defence. After two years of litigation and 7 days of trial the accused was acquitted of sexual assault and assault at trial at College Park Courthouse.

In 2021, Donich Law defended a client who allegedly inappropriately touched a friend without consent and was charged with sexual assault in R. v. D.P. [2021]. After a psychological assessment of the accused that raised concerns of underlying mental health issues, the Firm was able to add context to the alleged assault and the Crown agreed to withdrawal the charge.

In January 2020, the Firm secured an acquittal related to sexual assault and forcible confinement in Toronto in its R. v. M.Z. [2020]. The accused owned several restaurants in Toronto and was alleged to have sexually assaulted an employee in his office. After a year of litigation, the Firm managed to prove at trial the complainant was not telling the truth during cross-examination, and all charges were dismissed. The following week in January 2020, the Firm secured a further acquittal of sexual assault in Toronto in its R. v. K.H. [2020]. The accused was a successful businessman from the United States visiting Toronto and was alleged to have sexually assaulted the complainant in a hotel. The matter still proceeded with both parties residing outside the country for a year.

The Firm has considerable experience defending allegation of historical sexual assault and related offences. In July 2019. In the Firm’s R. v. A.E. [2019], it was able to secure a withdrawal of several child sex related offences in Perth, Ontario. The accused was now an adult, and facing allegations related to events which allegedly occurred in 1985. Over a period of a year through the court process, the Firm established the allegations were false and motivated by a family dispute related to a large inheritance.

When defending historical related sex offences, involvement of Children’s Aid Society (CAS) is very common, and they often conduct joint investigations with local law enforcement. This means, any evidence provided to CAS can ultimately be used against the accused in criminal prosecution. In the case noted above, the Firm was also able to overturn through litigation, the decision of the Officer in Charge to prohibit the accused from seeing his child without CAS approval. This created a dynamic where the accused was being compelled to provide evidence to CAS when he had the right to silence, in order to see his child.

The same month, the Firm further secured a withdrawal of sexual assault against the owner of a private hotel in Toronto at College Park Courthouse, where the accused was previously investigated 2 years prior by Toronto Police for an incident with another complainant in its R. v. T.K. [2019].

In March 2018, the Firm stayed a Sexual Assault and Forcible confinement allegation in a Swiss Chalet washroom against a co-worker who was having a secret affair with the complainant. The case was further complicated because the police produced evidence of a text message apology by the accused. The Firm conducted a complex s.276 application and recovered forensic data from a cloud backup ultimately showing the complainant deleted other exculpatory text messages in its R. v. S.L. [2018].

The Firm has also defended  Civil Actions of historical sexual assault which often arise in the context of criminal proceedings. These claims often seek well over $1 Million in damages and face similar trial challenges associated with criminal defence.

Sexual assault is a serious crime and aggressively prosecuted. In a recent Ministry of Attorney General mandate in 2018, certain districts have now precluded Mental Health Diversion for anyone facing Sexual Assault allegations. In addition, the Crown now has an extensive checklist to follow prior to withdrawing an allegation of sexual assault, ultimately limiting crown discretion and increasing the number of sexual assault trials. These offences are very fact based, often with conflicting testimony and evidence. The Firm has also significant experience defending sexual offences alleged to have occurred against children, specifically sexual interference and sexual extortion.

Charges of Sexual Assault can include allegations of Sexual Interference. We frequently handle allegations of sexual assault that have been advanced which are false and used for other motives against the accused. This may include family members, co-workers or ex-lovers. The Firm has even been retained to handled allegations of sexual assault before charges have been laid. The Firm has worked with Toronto Police to discredit allegations of sexual assault against the accused and successfully avoided charges from being laid, removing the potential social stigma associated with these allegations. We have been retained to assist doctors, physiotherapists, care-givers and other professionals who are at a higher risk of facing allegations of sexual misconduct at work. These are situations where the police have commenced an investigation against the professional without formal charges being laid.

In the Firm’s R. v. D.D. [2018], it secured an acquittal at Scarborough Courthouse in Toronto after a multi-day trial. The accused was alleged to have committed sexual assault on a minor 20 years ago. The Firm was able to establish through cross-examination the complainant was not credible and honest in the evidence provided. The complainant also advanced another allegation of sexual assault against another accused who was before the court at the same time. The two events were unrelatted, but being litigated simultaneouslty. The accused testified with independent defence witnesses and was believed.

In 2017, the Firm secured a withdrawal of two counts of sexual assault against a co-worker at College Park Courthouse. The outcome took 2 years to achieve. The Firm was able to establish the allegations were not as described or sexual in nature. Through input from the complainant, the allegations were withdrawn.

In 2016, after a multi-day trial at Old City Hall in Toronto it secured an acquittal on several child sex related offences which allegedly occurred over a decade prior in its R. v. D.N. [2016]. Through cross-examination, the Firm was able to establish the compliant was not being honest, the defence used evidence obtained through private investigation to achieve this outcome. The accused was acquitted of sexual assault, invitation to sexual touching, and sexual interference.

In November, 2016, the Firm secured a withdrawal of Nine Sex Offences against a Toronto TTC Driver, including Luring in its R. v. A.H. [2016]. This outcome was achieved by providing independent affidavit evidence through external counsel. The complainant who was a child at the time, indicated the allegations were not true and advanced by a falling out she had with her parents.

In November 2015, the Firm secured a withdrawal of several counts of sexual assault on two separate complainants in its R. v. K.C. [2015]. Through affidavit evidence, the Firm was able to defeat the allegations without a trial. The outcome was achieved through independent counsel where the Firm ultimately established the allegations were not as described and motivated by a falling out between a circle of friends.

In 2014, the Firm defended a Jehovah Witness in its R. v. R.K. [2014], who was alleged to have committed sexual assault in a public setting. The Firm was able to raise a reasonable doubt with respect to his actions and ultimately secured a withdrawal.

Click here for more information on defending sexual assault allegations including common defences and the law of consent in Canada or here if you have been falsely accused. Click here for more information on new changes to child sex offence sentencing.

Having a complete understanding of the Elements of the Criminal Offence, Your Rights and the Consequences associated with a Criminal Record is necessary before any legal decisions are made.

CP24: Civil Sexual Assault Lawsuit at St. Michael’s in Toronto.

Global News Radio: Two Lawsuits against Harvey Weinstein are being settled.

Global News: Historical Sexual Assault Charges and Bill Cosby.

Global News Radio: Justin Bieber facing allegations of Sexual Assault.

CityNews: Jordan Donich comments to CityNews regarding challenges with Sexual Assault Trials in Toronto.

CityNews: Jordan Donich provides expert commentary to CityNews regarding Sexual Assault Prosecution.

Legal Information

Sexual Assault Laws in Canada

What is Sexual Assault?
What is Consent?
What is Mistaken Belief in Consent?
What is Sexual Assault with a Weapon?
What is Sexual Assault with Threats to a Third Party?
What are some of the Penalties for Sexual Assault?
What is Sexual Assault causing Bodily Harm?
What is Aggravated Sexual Assault?
What are some of the Penalties for:
– Sexual Assault?
– Sexual Assault with a Weapon, Threats to a Third Party, or causing Bodily Harm?
– Aggravated Sexual Assault?
What is the difference between Sexual Assault and Sexual Interference?
What is the Age of Consent?
What is Incest?
What are some of the Penalties for Incest?
What is a s.487 DNA Order?
What is the Timing of a s.487 DNA Order?

Prior Sexual Activity with the Complainant

If I have had Past Sexual Encounters with the Person Accusing me of Sexual Assault can I use that as Evidence?
In What Circumstances can the Complainant’s Past Sexual History be used as Evidence?
What Types of Evidence will Always be Excluded?
If the Person Accusing me of Sexual Assault Sought Medical Attention can those Records be Used Against me?
What is the Process for Having Protected Private Records Produced for the Defense Team?
What Type of Records can be Used?
What Type of Records Cannot be Used?
Can Records of Past Sexual Assault Allegations be Used Against Me?
What is the Duration of a SOIRA order?
What is a s.161 Order?

Sexual Interference Charges

What is Sexual Interference?
What are some of the Penalties for Sexual Interference?
What is Invitation to Sexual Touching?
What are some of the Penalties for Invitation to Sexual Touching?
What is an Indecent Act?
What are some the Penalties for Indecent Act?
What is Exposure?
What are some of the Penalties for Exposure?
What is Incest?
What are some of the Penalties for Incest?
What is the SOIRA s.490.012 order?
What is the Duration of a SOIRA order?
What is a s.161 Order?

Sexual Exploitation Investigations

What is Sexual Exploitation?
What is the difference between Sexual Interference and Sexual Exploitation?
What is a Position of Trust or Authority and what are some examples?
What is a Relationship of Dependency and what are some examples?
What is an Exploitative Relationship and what are some examples?
What are defences to allegations of Sexual Exploitation?
How are charges of Sexual Exploitation and Child Pornography connected?

Additional Resources

Assault
Assaulting a Peace Officer
Children’s Aid Society
Sexual Assault Law in Canada
Consequences of a Criminal Record
Domestic Abuse
First Offenders
Immigration Consequences
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening
Elements of a Crime
Your Rights

What is Sexual Assault?

Sexual Assault is an offence under Section 271 of the Criminal Code. Sexual Assault is an assault of a sexual nature where the sexual integrity of the victim is violated. To determine whether an assault has the requisite sexual nature requires assessing whether a sexual or carnal context is visible to a reasonable observer.

Sexual Assault can be committed in any of the three ways that Assault can be committed – nonconsensual touching, threats by words or gesture, and accosting a person while openly carrying a weapon. However, touching is the most common way in which Sexual Assault occurs.

If the alleged Sexual Assault involved touching, three elements need to be proven in order to establish that the act was committed:

  • There must have been touching
  • The touching must have been of a sexual nature
  • AND there was no consent to the touching

Aside from proof of the actual touching, the accused has to have intended touching the complainant in a general sense. What this means is that the accused could not have touched the complainant accidentally or involuntarily.

The touching also has to be of a sexual nature. In order to determine this, the court will ask itself whether the sexual nature of the touching is apparent to a reasonable observer. The court will look at all of the relevant factors of the particular facts of the case. These can include: the body part that was touched; the nature of the contact; any words, gestures or threats accompanying the conduct; and the accused’s intent or purpose (e.g. sexual gratification).

Not all of these factors need to be present in order to establish the sexual nature of the touching. For example, the accused does not have to commit the touching for his sexual gratification. While he does have to intend the touching in a general sense, whether or not he intended to do so for sexual gratification is simply a factor to consider in determining whether or not there was a sexual element to it.

Finally, there also has to be a lack of consent to the touching. As this is a complex topic on its own, it is dealt with in its own separate section below.

What is Consent?

The definition of consent for the purposes of Sexual Assault is set out in s.273.1 of the Criminal Code. It is defined as “the voluntary agreement of the complainant to engage in the sexual activity in question.”

In deciding whether or not there was consent, the court will try to determine what the complainant’s subjective state of mind was towards the touching at the time that it occurred. This does not mean that it is enough for a complainant to say that he or she did not consent to the touching. The jury can accept the complainant’s testimony if they view it as credible. But they may also decide not to accept the testimony, having regard to the other facts and circumstances of the case. For example, if a complainant testifies that she did not consent to the touching, but other circumstances of the case raise reasonable doubt about this, the jury may choose not to accept the complainant’s testimony.

In many cases, the presence or absence of consent will be difficult to determine. While the accused can argue that there was consent on the basis of the complainant’s words or actions, he or she cannot argue that there was implied consent. For example, the accused cannot argue that the complainant’s silence or passivity constituted consent. Furthermore, if the complainant said ‘no’ to the touching, then the accused must have obtained a clear and unequivocal ‘yes’ before proceeding with the touching. Consent has to be ongoing, and cannot be given for a future activity.

In addition to these general principles, the Criminal Code explicitly establishes instances when no consent is obtained. These are set out in two provisions – s.265(3) applies to all Assault-related offences, including Sexual Assault; s.273.1(2) applies only to cases of Sexual Assault. In the circumstances listed in these provisions, even where it may appear that there was consent to the touching, the court will hold that there was no consent.

S.265(3) states that no consent is obtained where the complainant submits or does not resist by reason of:

  • The application of force to the complainant or to a person other than the complainant.
  • Threats or fear of the application of force to the complainant or to a person other than the complainant.
  • The exercise of authority.

S.273.1(2) states that no consent is obtained where:

  • The agreement is expressed by the words or conduct of a person other than the complainant.
  • The complainant is incapable of consenting to the activity.
  • The accused induces the complainant to engage in the activity by abusing a position of trust, power or authority.
  • The complainant expresses, by words or conduct, a lack of agreement to engage in the activity.
  • The complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

What is Mistaken Belief in Consent?

Mistaken Belief in Consent is a defence to a charge of Sexual Assault. The defence deems that when the accused honestly, but mistakenly, believed that there was consent to the touching, the accused did not have the intention to touch the complainant without their consent. If the defence is successfully established, the accused will be acquitted.

However, courts have narrowed the application of the defence of mistaken belief such that it only applies in exceptional circumstances. There are several limitations to the application of the defence:

  • There must be evidence of ambiguity – that there was reason for the accused to believe that there was consent. However, the accused cannot argue that silence, passivity or ambiguous conduct constituted consent.
  • The accused cannot rely on the mistaken belief that the complainant’s “no” was actually an invitation for more persistent conduct.
  • Once the complainant said “no”, the accused must have obtained an unequivocal “yes” before continuing the touching.
  • The accused cannot rely on a mere lapse of time to indicate the complainant has had a change of heart. The accused also cannot use further touching to “test the waters”.
  • The accused cannot rely on a mistaken belief that arose because of his or her self-induced intoxication or out of reckless or willful blindness.
  • Finally, the accused must have taken reasonable steps, in the circumstances known to him or her at the time, to ascertain that the complainant was consenting. In determining this, the court will ask itself whether a reasonable person in those circumstances would have taken further steps before proceeding with the touching.

Therefore, the application of the defence of mistaken belief in consent is limited to situations in which the accused had reason to believe there was consent, from the words or conduct of the complainant, and took reasonable steps to ascertain consent before continuing with the activity.

What is Sexual Assault with a Weapon?

Sexual Assault with a Weapon has all the same requirements as a Sexual Assault – touching of a sexual nature without consent. In addition, the accused has to have carried, used or threatened to use a weapon or an imitation of a weapon in committing the offense.

If the weapon in question is a firearm, ‘using’ the firearm includes pulling it out and holding it to intimidate another person. Courts have recognized various objects as weapons in cases of Sexual Assault. For example, in one case, the court decided a dog was used as a weapon. In another case, the court decided that a beer bottle was used as a weapon.

Sexual Assault with a Weapon has higher maximum possible penalties than simple Sexual Assault.

What is Sexual Assault with Threats to a Third Party?

Sexual Assault with Threats to a Third Party includes all of the elements of simple Sexual Assault, with addition that the offence was committed while threatening to cause bodily harm to a person other than the complainant.

The Criminal Code defines bodily harm as: “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.”

What are some of the Penalties for Sexual Assault?

Penalties for sexual assault will vary depending on the specific circumstances of the offence, the characteristics of the offender and complainant and the presence of aggravating or mitigating factors. Penalties also vary depending on which of the sexual assault offences an individual is charged with.

Section 271 of the Criminal Code sets out that a conviction for sexual assault can result in up to ten years imprisonment if the Crown proceeds by indictment. There is a minimum penalty of one-year imprisonment if the complainant is under the age of sixteen. The offence is also punishable on summary conviction by a penalty of up to two years less a day imprisonment. There is a minimum penalty of ninety days imprisonment if the complainant is under the age of sixteen.

Section 272 of the Criminal Code sets out that a conviction for sexual assault with a weapon, threats to a third party or causing bodily harm can result in up to fourteen years imprisonment. There are also minimum imprisonment terms for offences that involve firearms, are committed in relation to a criminal association, are subsequent offences or that involve a complainant under the age of sixteen.

Section 273 of the Criminal Code sets out that a conviction for aggravated sexual assault can result in life imprisonment. There are also minimum imprisonment terms for offences that involve firearms, are committed in relation to a criminal association, are subsequent offences or that involve a complainant under the age of sixteen.

What is Sexual Assault causing Bodily Harm?

Sexual Assault causing Bodily Harm is established in the same way as Sexual Assault, with the additional element that the assault caused bodily harm to the complainant.

The Criminal Code defines bodily harm as: “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.” The types of injuries that satisfy this definition vary from case to case. Examples include cuts to the body or serious bruising (especially to the face). However, regular bruising does not generally constitute bodily harm, if it is transient and trifling in nature.

It is not necessary that the accused intended to cause the specific type of bodily harm. All that is required is that bodily harm in general was reasonably foreseeable as a result of the accused’s actions.

What is Aggravated Sexual Assault?

Aggravated Sexual Assault is the most serious of the Sexual Assault-related offences. It occurs when the offender, in committing a Sexual Assault, wounds, maims, disfigures or endangers the life of the complainant. Thus, in addition to the requirements of Sexual Assault there is the requirement that the assault resulted in one of the listed outcomes.

What are some of the Penalties for:

  • Sexual Assault?

If the Crown prosecutes the Sexual Assault as an indictable offence, the maximum penalty is imprisonment for 10 years. If the complainant is under 16 years old, the offender cannot receive a sentence of less than one year imprisonment.

If the Crown prosecutes the Sexual Assault by summary conviction, the maximum penalty is imprisonment for two years less a day imprisonment. If the complainant is under 16 years old, the offender has to receive a sentence of at least 90 days’ imprisonment.

  • Sexual Assault with a Weapon, Threats to a Third Party, or causing Bodily Harm?

These offences are all indictable offences and therefore have a higher maximum penalty. In general, the maximum penalty is 14 years’ imprisonment, but the Code also prescribes minimum sentences in several special circumstances.

If the offence is committed using a restricted or prohibited firearm, the maximum penalty is also 14 years’ imprisonment, but the minimum is 5 years for a first offence and 7 years for a subsequent offence. The Criminal Code defines restricted or prohibited firearms, they include firearms that a person should not be in possession of, such as unlicensed guns.

If any firearm is used (could be a licensed gun), the maximum penalty is 14 years’ imprisonment, and the minimum is 4 years.

If the complainant is under the age of 16, the maximum imprisonment is 14 years, while the minimum is 5 years.

  • Aggravated Sexual Assault?

Aggravated Sexual Assault can only be prosecuted as an indictable offence. The general maximum penalty is imprisonment for life, and applies to all instances of Aggravated Sexual Assault. The Criminal Code sets out several specific instances where there is a minimum penalty in addition to the maximum.

If the offence was committed using a restricted or prohibited firearm, the minimum sentence is 5 years’ imprisonment for the first offence, and 7 years for subsequent offences. A restricted or prohibited firearm is defined by the Criminal Code and includes firearms for which the offender has no license, or a firearm that the user has a weapon’s prohibition against.

If any firearm is used in the commission of the offence, the minimum punishment is 4 years’ imprisonment.

If the complainant is under the age of 16, the minimum penalty is 5 years’ imprisonment.

What is the difference between Sexual Assault and Sexual Interference?

There are several differences between Sexual Assault and Sexual Interference. The first is the age of the complainant. Sexual Interference deals only with cases where the complainant is under the age of 16. Sexual Assault charges on the other hand can arise regardless of the age of the complainant. While a case involving a complainant under the age of 16 can be prosecuted as both a Sexual Assault and Sexual Interference, the accused can only be convicted of one of the two offences.

Another difference between the two is that Sexual Interference occurs only through touching. Sexual Assault on the other hand can occur in any way that an Assault can be carried out, and therefore does not require touching. Most commonly however, Sexual Assault still occurs through non-consensual touching.

Therefore while the two offences are similar in some ways, the offence of Sexual Interference is meant to directly address instances of sexual touching of complainants under the age of 16.

What is the Age of Consent?

The Age of Consent is the age at which a person is legally allowed to give consent to sexual touching by another person. In Canada, the Age of Consent is 16. If a person is under the age of 16, the law deems him or her incapable of giving consent. As such any sexual activity with a person under the age of 16 is a criminal offence.

Furthermore, since the person is legally incapable of giving consent, mistaken belief in consent is not a defence to a charge of Sexual Assault or Sexual Intereference where the complainant is younger than 16. There are exceptions however. If the complainant is 12-13 years old, and the accused is less than 2 years older than the complainant, the defence of mistaken belief is available to the accused. The defence is also available if the complainant is 14-15 years old and the accused is less than 5 years older than the complainant.

It is also not a defence for the accused to say that he or she believed the complainant was 16 or older, unless the accused took all reasonable steps to ascertain the age of the complainant. What constitutes “reasonable steps” depends on the circumstances of each case. The question is what steps a reasonable person would have taken to ascertain the age of the complainant. Depending on the circumstances, this could range from just visual observation, to actually trying to verify the age of the complainant through some kind of ID.

What is Incest?

Section 155(1) of the Criminal Code lays out the offence of incest. Incest refers to situations where two individuals who are related by blood engage in sexual intercourse. The relationships that would be considered applicable under this section include; parents, children, siblings, grandparents and grandchildren. The individuals must have had knowledge of their blood relation prior to engaging in sexual intercourse for it to qualify as incest.

What are some of the Penalties for Incest?

Penalties for incest will vary depending on the specific circumstances of the offence, the characteristics of the offender and complainant and the presence of aggravating or mitigating factors.

Section 155(2) of the Criminal Code sets out that a conviction for incest can result in up to fourteen years imprisonment. There is a minimum penalty of five years imprisonment if the complainant is under the age of sixteen.

What is a s.487 DNA Order?

s.487.05 of the Criminal Code allows the court to issue a warrant authorizing the taking of DNA samples from a person for the purpose of forensic analysis to assist in a criminal investigation.

Under s.487.051 of the Criminal Code, a judge has to make an order authorizing the taking of bodily substances for DNA tests from a person who has been convicted, discharged, or found guilty as a young offender of any offence included in the list of “primary designated offences”. Among the included offences are: Sexual Interference; Incest; Sexual Assault; Sexual Assault with a Weapon, Threats to a Third Party, or Causing Bodily Harm; and Aggravated Sexual Assault. The court order is made at sentencing, and the purpose is to submit the DNA samples to a National DNA Data Bank.

What is the Timing of a s.487 DNA Order?

A court can make an order for the collection of DNA samples under s.487.051 when it imposes a sentence on a person, finds the person not criminally responsible on account of mental disorder or directs that they be discharged under s.730.

The court can still make the order after this time if it sets a date for a hearing on whether to make the order within 90 days of imposing the sentence, making the finding of not criminally responsible, or discharging the person.

Where do you Defend Sexual Assault Charges?

The Frim defends sexual assault charges across Ontario, some of the areas we service include: Brampton, Guelph, Kitchener, London, Milton, Newmarket and Ottawa.

Prior Sexual Activity with the Complainant

If I have had Past Sexual Encounters with the Person Accusing me of Sexual Assault can I use that as Evidence?

As a general rule, the answer is no. Section 276(1) of the Criminal Code states that the defendant in a sexual assault trial cannot admit evidence relating to the complainant’s past sexual history to prove that the complainant likely consented to the sexual activity alleged in the charge or to show that the complaint is untrustworthy or lacks veracity. Any such evidence, referencing either sexual activity between the complainant and the accused or between the complainant and another individual will be barred from evidence.

In What Circumstances can the Complainant’s Past Sexual History be used as Evidence?

According to s. 276(2) of the Criminal Code a judge or justice presiding over a case may choose to admit evidence of the complainant’s past sexual history in certain limited circumstances. The Criminal Code provides a test to be used in making the determination. The test has three prongs and is follows: the evidence must be of a specific instance of sexual activity, the evidence must be relevant to an issue at trial and finally the evidence’s probative value must significantly outweigh its prejudicial effect on the case. Before a hearing can be held to determine if the test has been satisfied, the accused must show on a balance of probabilities that the evidence he is proposing to admit is capable of meeting the test. If the judge/justice is satisfied that the evidence is capable of meeting the test, a hearing will be held to determine if the test has in fact been satisfied. If the test is satisfied as determined by the judge or justice in the case, the evidence will be admitted at trial.

Section 276(3) of the Criminal Code has also outlined several factors judges can use in making their determination. These factors include; whether there is a reasonable chance that the evidence will be helpful in deciding the case, whether admitting the evidence would be in the best interest of justice so as to ensure the accused’s right to a full defense, society’s interest in encouraging sexual assault survivors to come forward with their stories, the complainant’s right to privacy and dignity, the complainant’s right to personal security and to full and equal protection under the law, the risk that the evidence will be overly prejudicial or will invoke strong feelings of anger or sympathy in the jury and any other factors that the judge in the case deems necessary to consider.

What Types of Evidence will Always be Excluded?

As mentioned in s. 276(1) of the Criminal Code there are certain categories of evidence that will always be barred from evidence in sexual assault trials. This is generally done to protect the alleged victim. Any evidence relating to the complainant’s past sexual history that is introduced to infer that the complainant likely consented to the sexual activity at issue in the case, or that the complainant’s allegations should not be believed will not be admitted into evidence under any circumstances. Essentially this means that the defendant cannot argue that because the complainant consented to certain sexual acts in the past they must have consented on the occasion at issue in the trial. Evidence of the complainant’s sexual reputation will also not be admissible. Finally, evidence of past sexual activity of the complainant that is not relevant to the sexual activity at issue in the case will not be admissible under any circumstances.

If the Person Accusing me of Sexual Assault Sought Medical Attention can those Records be Used Against me?

Section 278.2(1) of the Criminal Code states that no records containing personal information regarding the complainant or a witness in the trial shall be produced for the accused to be used as evidence in a sexual assault trial. If the defense team requires such records to be produced because they are relevant to the issue at trial, they must make an application to the presiding judge or justice.

What is the Process for Having Protected Private Records Produced for the Defense Team?

If an accused in a sexual assault trial wishes to have records containing private information relating to the complainant or a witness in the trial produced they must make an application in writing to the judge or justice hearing the case. As outlined in s. 278.3(3) of the Criminal Code, the application must identify the specific records to be produced, the identity of the third party individual who is in possession of the records and why the records are relevant to the issue at trial or the veracity and/or competence of the complainant or witness. Once the application is submitted the judge or justice will hold a hearing to determine if the record should be produced for the accused. The record will be produced where the judge or justice is satisfied that the information contained in it will be relevant to the issue at trial and where it is in the best interest of justice to produce it for the accused.

The Criminal Code also outlines various factors that the judge or justice in the case should consider when making their determination at the hearing. Section 278.5(2) states that the judge shall deliberate on both the salutary and deleterious effects of producing the records on the defense team’s ability to fully answer the allegations against the accused. In addition, the judge or justice should also consider the salutary and deleterious effects of producing the record on the complainant or witnesses right to equality, privacy and personal security under the law. The judge or justice must also take the following factors into consideration when making their determination; the extent to which the records are required for the accused to make a full and complete defense, the probative value of the records, the nature and extent of the reasonable expectation of privacy with respect to the personal information contained in the record, whether production of the record is based on a discriminatory belief or bias, the potential prejudice to personal dignity the complainant or witness will experience if the record is produced, society’s interest in encouraging individuals to obtain treatment after being sexually assaulted, society’s interest in encouraging sexual assault victims to report the assault and the effect of the determination on the integrity of the trial process.

If the judge or justice is satisfied that the record is sufficiently relevant to the issue at trial or the competency or trustworthiness of the witness of complainant, the judge or justice will order the record be produced for the accused under s. 278.7(1) of the Criminal Code. Where the judge orders the record be produced, conditions may be attached to ensure the complainant’s or witness’s privacy is protected to the fullest extent of the law. Common conditions attached to s. 278.7(1) production orders include editing or redacting portions of the record that are not relevant, removing personal information including the phone number and address of the complainant or witness and/or stipulating that only copies of the records be produced for the accused.

What Type of Records can be Used?

Only records that are relevant to the issue at trial or the competency or veracity of the witness or complainant can be used at trial. The accused must prove at a hearing before the judge or justice presiding over the case that the records are sufficiently relevant. In addition to relevant documents, any records created by a police officer or another investigating officer collecting evidence to be used in the prosecution of the accused must be made available to the accused.

What Type of Records Cannot be Used?

Generally, any document containing personal information about the complainant or the witness to which they would have a reasonable expectation of privacy will be protected from production to the accused. Some examples of such records include; psychiatric, medical, counselling, education, therapeutic, employment, adoption and social services records, child welfare, personal journals or diaries, employment, and any other record containing personal information that is protected by an Act of the Parliament or provincial legislature. Where the accused requires protected records be produced for his or her defense, an application must be made to the judge showing that the records are relevant to the issue at trial or to the trustworthiness or competency of the witness or complainant. This process is outlined in more detail above.

Can Records of Past Sexual Assault Allegations be Used Against Me?

Generally, any evidence that the prosecution wishes to admit at trial must be relevant to the issue at trial. Records of past sexual assault allegations could be used against an accused at trial where the evidence is being used to prove the identity or the modus operandi (MO) of the perpetrator of the sexual assault. The evidence must be distinctly similar to the facts in the current trial. For example, if the accused was convicted of a historical sexual assault where the assault was committed in a unique way, that evidence is likely to be admitted where the assault in the current trial was committed in the same unique way. Additionally, the judge must be satisfied that the prejudicial effect of the evidence of the past sexual assault allegation will not outweigh its probative value in the case. Evidence of past sexual assault allegations cannot be admitted simply to show that since the accused committed such an act in the past they are likely to have committed it this time as well.

What is the Duration of a SOIRA order?

SOIRA orders can be made for a period of ten years, twenty years or life. The length of the order depends on the type of offence committed.

What is a s.161 Order?

Section 161 of the Criminal Code allows an order to be made prohibiting convicted offenders from certain activities that may have them in contact with persons under the age of sixteen. These orders are made when an offender is convicted of a designated offence concerning a person under the age of sixteen. Section 161 orders are meant to be preventative in nature by protecting children and young persons from convicted offenders.

Sexual Interference Charges

What is Sexual Interference? 

Sexual Interference is a crime under s.151 of the Criminal Code. It is like a Sexual Assault in many ways, except that it is reserved for cases where the complainant is under 16 years old. Due to the similarity between the two, the facts of a Sexual Interference are also enough to fulfill the requirements of a Sexual Assault, however a person can only be convicted of one of the two offences.

Unlike Sexual Assault, for touching to constitute Sexual Interference, it has to be for a sexual purpose. Touching for a “sexual purpose” requires that the accused intended sexual interaction of any kind with the child and with that intent, made contact with the body of the child with any part of his body or with an object. In contrast, for Sexual Assault, the touching has to be of a sexual nature. “Sexual nature” does not necessarily mean that there has to be an element of sexuality or sexual gratification on the part of the accused. The court decides whether the touching was of a sexual nature with a view to all the facts. Thus Sexual Interference is slightly more specific than Sexual Assault. It requires that the accused specifically intended to touch the complainant for a sexual purpose, whereas for Sexual Assault it is enough that the accused simply intended to touch the complainant in addition to the other requirements (lack of consent, sexual nature of the touching).

What are some of the Penalties for Sexual Interference? 

The sentence received depends on whether the Crown prosecutes the case as an indictable offence or by summary conviction. It is at the discretion of the Crown how they will prosecute the offence. This decision is based on a number of different factors, such as the seriousness of the offence and the alleged acts of the accused. Indictable offences are considered the more serious ones and have a higher possible penalty than summary convictions.

For both summary conviction and indictable offences, the Criminal Code only imposes a maximum, and sometimes a minimum, penalty. The actual sentence given depends on many different factors. For example, whether the offender is a youth and/or first offender, circumstances of the offence, factors relating to the victim, the effects of the offence, etc.

The penalties for Sexual Interference are the same as those for Sexual Assault where the complainant is under the age of 16 years. If it is prosecuted as an indictable offence, the maximum punishment is 10 years’ imprisonment and the minimum is 1 year’s imprisonment. If it is prosecuted by summary conviction, the maximum sentence is 18 months’ imprisonment and the minimum is 90 days.

What is Invitation to Sexual Touching?

Invitation to Sexual Touching is committed when the accused, for a sexual purpose, invites, counsels or incites a person under the age of 16 to touch the body of any person, including the accused or the complainant him/herself. The touching can be direct or indirect, done with part of the body or with an object.

An “invitation” is when the accused asks the complainant to touch the person in question. This could be done through telephone or internet communication. However an “invitation” has to suggest actual physical contact.

To “incite” means that the accused by some positive act, urged, persuaded or encouraged the complainant to touch for a sexual purpose.

Furthermore, the accused has to have intended that the child receive the communication as an invitation, incitement or counseling to do the touching. Alternatively, the accused must have at least known the substantial risk that the child would receive the communication as an invitation, incitement or counseling to do the touching.

Whether or not ‘dirty talk’ falls within this definition depends on the case. In some instances, the judge may infer from the ‘dirty talk’ that the accused intended to normalize sexual touching to the child, which would meet the required intent for the offence.

What are some of the Penalties for Invitation to Sexual Touching?

The sentence received depends on whether the Crown prosecutes the case as an indictable offence or by summary conviction. It is at the discretion of the Crown how they will prosecute the offence. This decision is based on a number of different factors, such as the seriousness of the offence and the alleged acts of the accused. Indictable offences are considered the more serious ones and have a higher possible penalty than summary convictions.

For both summary conviction and indictable offences, the Criminal Code imposes a maximum and minimum possible penalty. The actual sentence given depends on many different factors. For example, whether the offender is a youth and/or first offender, circumstances of the offence, factors relating to the victim, the effects of the offence, etc.

If prosecuted as an indictable offence, Invitation to Sexual Touching has a maximum sentence of 10 years’ imprisonment and a minimum of 1 year’s imprisonment. If prosecuted by summary conviction, there is a maximum sentence of 18 months’ imprisonment and a minimum of 90 days’ imprisonment.

What is an Indecent Act? 

An Indecent Act is a criminal offence under s.173(1) of the Criminal Code. It is a criminal offence to do an Indecent Act in a public place, in the presence of one or more persons. There is no precise definition of what constitutes an Indecent Act. Instead, the court determines whether the alleged act was Indecent based on what the community would find tolerable. Generally, “indecency” concerns sexual behaviour, but it is not restricted to it.

In addition to the requirement that the act must be indecent, it must also be committed in a public place. A public place is a place where the public has access, and not merely a place where people may see or hear into from the outside. For example, in one case, an accused who was masturbating in his house in full view of his neighbours from his lighted window was found not to have been guilty of an Indecent Act as it was not committed in a public place. In another case, a court found that a car parked in a parking lot over 100 feet away from other cars was not a public place. In yet another case however, the accused was found guilty of an Indecent Act for masturbating in his car while stopped at a red light on a busy street and deliberately making eye contact with a person in another vehicle.

What are some the Penalties for Indecent Act? 

The sentence received depends on whether the Crown prosecutes the case as an indictable offence or by summary conviction. It is at the discretion of the Crown how they will prosecute the offence. This decision is based on a number of different factors, such as the seriousness of the offence and the alleged acts of the accused. Indictable offences are considered the more serious ones and have a higher possible penalty than summary convictions.

For both summary conviction and indictable offences, the Criminal Code only imposes a maximum penalty for an Indecent Act. The actual sentence given depends on many different factors. For example, whether the offender is a youth and/or first offender, circumstances of the offence, factors relating to the victim, the effects of the offence, etc.

If prosecuted as an indictable offence, an Indecent Act has a maximum sentence of 2 years’ imprisonment. If prosecuted by summary conviction, the maximum punishment is 6 months’ imprisonment.

What is Exposure? 

Exposure is a criminal offence under s.173(2) of the Criminal Code. It occurs when a person exposes his or her sexual organs to a person who is under 16 years old. It can occur in any place, (it does not have to be in a public location), and can occur when the accused exposes him/herself to a child on the internet.

What are some of the Penalties for Exposure?

The sentence received depends on whether the Crown prosecutes the case as an indictable offence or by summary conviction. It is at the discretion of the Crown how they will prosecute the offence. This decision is based on a number of different factors, such as the seriousness of the offence and the alleged acts of the accused. Indictable offences are considered the more serious ones and have a higher possible penalty than summary convictions.

For both summary conviction and indictable offences, the Criminal Code imposes a maximum and minimum possible penalty. The actual sentence given depends on many different factors. For example, whether the offender is a youth and/or first offender, circumstances of the offence, factors relating to the victim, the effects of the offence, etc.

If prosecuted as an indictable offence, the maximum penalty for Exposure is two years’ imprisonment and the minimum is 90 days. If prosecuted by summary conviction, the maximum penalty is 6 months’ imprisonment and the minimum is 30 days.

What is Incest?

Incest is defined under s.155 of the Criminal Code as occurring when a person, knowing that another person is by blood relationship his or her parent, child, brother, sister, grandparent or grandchild, has sexual intercourse with that person. “Brother and sister” also includes half-brothers or half-sisters.

If the accused was under restraint, duress or fear of the person with whom he or she had sexual intercourse, then the accused will not be guilty of incest.

What are some of the Penalties for Incest? 

Incest can only be prosecuted as an indictable offence. Indictable offences have a higher possible penalty than offences prosecuted on summary conviction, however an accused has more rights in a trial for an indictable offence.

Incest has a maximum sentence of 14 years’ imprisonment. If the other person involved is under the age of 16 years, the minimum punishment is 5 years’ imprisonment. The actual sentence given depends on many different factors. For example, whether the offender is a youth and/or first offender, circumstances of the offence, factors relating to the victim, the effects of the offence, etc.

What is the SOIRA s.490.012 order? 

SOIRA stands for the Sexual Offender Information Registration Act. SOIRA establishes a national database that registers sexual offenders. The information that is recorded in the database is available to all accredited Canadian police agencies. The purpose of the database is to assist police in future investigations of sexual offences by providing information that might be of investigative assistance. For example, during an investigation for a reported sexual offence, police use the database to identify possible suspects known to reside near the site where the offence was committed.

What is the Duration of a SOIRA order? 

A SOIRA order varies in length depending on the offence it is issued for. If the offence was prosecuted on summary conviction, or if the maximum penalty for the offence is 2 or 5 years’ imprisonment, then the order ends 10 years after the date that it was issued. If the maximum term of imprisonment for the offence is 10 or 14 years, the order ends 20 years after it was made. The order lasts for life if the maximum term of imprisonment for the offence is life. So for example, if a person is convicted of Sexual Assault on summary conviction, the SOIRA order will last for 10 years. If the person is convicted of Sexual Assault by indictment, since the maximum possible sentence is 10 year’s imprisonment, regardless of the actual length of the prison sentence, the SOIRA order will be for 20 years.

What is a s.161 Order? 

A s.161 order can be made against a person who has been convicted or discharged of a sexual offence where the complainant was under 16 years old. The order sets additional conditions on the accused that seek to address the nature of the offence as a sexual offence committed against a minor. The order is made in addition to any other punishment imposed for a conviction, or in the case of a discharge, any other condition prescribed in the order of discharge. While it is up to the discretion of the judge to vary the specifics of the order, a s.161 order can prohibit the offender from:

  • Attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present.
  • Attending a daycare centre, playground or community centre.
  • Seeking, obtaining or continuing any employment, or becoming or being a volunteer in a capacity that involves being in the position of trust or authority towards persons under the age of 16 years.
  • Having any contact – including communicating by any means – with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate.
  • Using the Internet or other digital network, unless done so in accordance with conditions set by the court.

The offences that a s.161 order can be made for include:

  • 151 Sexual Interference
  • 152 Invitation to Sexual Touching
  • 155 Incest
  • 163.1 Child Pornography
  • 172.1 Luring a Child
  • 173(2) Exposure
  • 271 Sexual Assault
  • 272 Sexual Assault with a Weapon, Threats to a Third Party or Causing Bodily Harm
  • 273 Aggravated Sexual Assault

For the full list see s.161 of the Criminal Code.

A court will consider several factors in determining whether a s.161 order should be made. These factors are similar to the ones considered in determining whether a prison sentence is appropriate. They include:

  • The nature of the offence and the circumstances in which it was committed
  • Prior related record and risk of reoffending
  • Age and vulnerability of the victims
  • Offender’s failure to take responsibility for the offence, lack of remorse, lack of insight into the seriousness of the offence and reluctance to take treatment.
  • Evidence indicating that the risk of reoffending may be reduced – expert evidence of offender’s rehabilitation, support of family and friends to avoid recidivism, evidence that it was a one-time offence in an otherwise unblemished past record. These may all serve to reduce the duration or severity of the conditions imposed.

The court will set the duration of such an order. There is no maximum length, and the order could be set for life. However, the order may be varied on application to a court if there is a change in circumstances. An example of a change in circumstances could be if there is a finding that the offender no longer poses a sufficient risk of harm.

It is a criminal offence under s.161(4) for the person against whom the order is made to breach a condition of the order. A breach is punishable as an indictable offence with a maximum penalty of up to 2 years’ imprisonment, or on summary conviction.

 

Sexual Exploitation Investigations

What is Sexual Exploitation?

Sexual Exploitation is a criminal offence under s.153 of the Criminal Code. In many ways it is like the offence of Sexual Interference and Invitation to Sexual Touching, except it only applies where the complainant is 16 years of age or older and under 18 years old.

First the accused must occupy one of three positions in relation to a young person:

  • The accused is in a position of trust or authority towards a young person
  • The accused is a person with whom the young person is in a relationship of dependency; OR
  • The accused is in a relationship with a young person that is exploitative of the young person.

A “young person” is someone who is 16 years of age or older but under the age of 18 years.

In addition to being in such a position, the accused can commit the offence in one of two ways:

  • For a sexual purpose, touching directly or indirectly, with a part of the body or with an object, any part of the body of the young person. OR
  • For a sexual purpose, inviting, counselling or inciting a young person to touch, directly or indirectly, with a part of the body or an object, the body of any person. That person could include the accused or could be the complainant him/herself.

A sexual purpose generally means that the act was done for the purpose of sexual gratification or arousal on the part of the accused. In order to prove the sexual purpose, the Crown has to put forward evidence of the accused’s purpose. This can be done through circumstantial evidence, but in order to be successful, the only rational conclusion form the evidence has to be that there was a sexual purpose.

What is the difference between Sexual Interference and Sexual Exploitation?

Like Sexual Interference, Sexual Exploitation can be established with proof that the accused touched for a sexual purpose, directly or indirectly, with a part of the body or with an object, the body of the complainant. However, Sexual Exploitation requires some additional elements to be proven as well. Unlike with Sexual Interference where the complainant has to be younger than 16 years of age, the complainant in a charge of Sexual Exploitation has to be 16 years or older and younger than 18 years.

Furthermore, in Sexual Interference, the accused does not have to occupy any particular kind of position in relation to the complainant; it is enough that the accused is someone who touched the underage victim. With Sexual Exploitation, the Crown must prove that the accused was either in a position of trust or authority towards the complainant, that the complainant was in a relationship of dependency with the accused, or that the accused is in an exploitative relationship with the complainant.

Therefore, Sexual Exploitation has some additional elements to be proven than those required for Sexual Interference. Unlike Sexual Interference where any sexual activity with a person younger than 16 is illegal, Sexual Exploitation isn’t meant to illegalize all sexual relations with persons aged 16 to 18. Instead it is directed only at situations where the young person is in a vulnerable position in relation to the accused. By making any sexual activity with such persons illegal, whether the activity was consensual or not, it is meant to protect young persons in vulnerable positions.

What is a Position of Trust or Authority and what are some examples?

Courts give Trust and Authority their ordinary meaning. In other words, Trust and Authority have the same meaning as they do in everyday usage. A Position of Authority includes not just the formal status of authority but also cases where the accused actually exercises authority over the complainant despite lacking any formal position in relation to the complainant. In order to determine whether the accused was in a Position of Authority over the complainant, the court will look at all the circumstances of the case. For example, the court will consider the age difference, the accused’s status in relation to the complainant, and any other evidence of their relationship.

A Position of Trust involves notions of safety and confidence and reliability that the special nature of the relationship will not be breached. A person in a Position of Trust will owe a duty of care to the other person. Positions of Trust and Authority can be exclusive categories, or a person can be in both a Position of Trust and Authority as well as another one of the categories of relationship under Sexual Exploitation.

Examples of a Position of Trust and Authority include a teacher, employer, manager, camp counsellor, an instructor of an extra-curricular program such a dance instructor, sports coach or trainer, etc. It could also arise where the accused had no formal status in relation to the complainant, such as cultivating a ‘big brother’ relationship with the complainant.

However, whether the accused actually occupied a Position of Trust and Authority depends on the particular facts of the case. In several cases the accused was found not to be in a Position of Trust and Authority towards a young person despite holding one of the positions listed above. Examples include:

  • The owner of an arcade where the complainant worked.
  • A teaching assistant at the complainant’s high school.
  • Accused and stepdaughter lived in the same house.
  • A “horse trainer” with whom the complainant worked.

When the accused is also young and close in age to the complainant, it will be rare that the court will find that the accused was in a Position of Trust and Authority. However, the court may still find the accused held a Position of Trust and Authority in some cases such as lifeguard, tutor, camp counsellor, babysitter, etc.

What is a Relationship of Dependency and what are some examples?

A Relationship of Dependency is similar to a Position of Trust and Authority except that the relationship exists along less formal and traditional lines. It occurs where there is de facto reliance by a young person on a figure who has assumed a position of power over the young person. This is meant to be a flexible category and an extension of the idea of Position of Trust and Authority. Relationship of Dependency has not been invoked as often as the category of Trust and Authority.

Whether or not there was a Relationship of Dependency is determined on a case-by-case basis. This means that determining whether or not there was such a relationship depends very much on the particular facts of the case, and does not rely as much on precedents as examples of a Relationship of Dependency.

One example where the court found there was no Relationship of Dependency is where the accused, a 27-year-old man, housed and fed a young female runaway. The court determined that there was no Relationship of Dependency as they were in a boyfriend/girlfriend relationship, which although may be frowned upon by society because of the age disparity, was not illegal in the law.

What is an Exploitative Relationship and what are some examples?

An Exploitative Relationship occurs where there is a power imbalance between the accused and the young person, and the type of relationship is not covered by the other two categories (Position of Trust or Authority, or Relationship of Dependency). The court will look at all the circumstances of the case and to the factors listed in s.153(1.2) of the Criminal Code to determine whether there was an Exploitative Relationship.

The s.153(1.2) factors are:

  1. The age of the young person;
  2. The age difference between the accused and the young person;
  3. The evolution of the relationship; and
  4. The degree of control or influence by the accused over the young person.

The court must be able to infer from all of these factors that the young person was, as a result of the power imbalance, vulnerable to the actions and conduct of the accused, and that the accused was taking advantage of the young person for his or her own benefit.

Evidence of age difference alone is not enough to establish an exploitative relationship. In one case, the accused was an assistant coach of the complainant’s youth soccer team. The court determined that the charges did not relate to the time period while the accused was the assistant coach, but that the alleged acts occurred later. As such the court found that there was no exploitative relationship.

What are defences to allegations of Sexual Exploitation?

In order to prove Sexual Exploitation, the prosecution needs to prove beyond a reasonable doubt that the accused intended to do the touching (or the alleged act) for a sexual purpose. This is different than an offence like Sexual Assault, where the only intention required is that the accused intended any kind of touching of the complainant. Since Sexual Exploitation requires the specific intent of “for a sexual purpose”, intoxication can be a defence to the charge. If evidence of intoxication raises reasonable doubt over whether the accused had the capacity to form the intent to touch or commit the act for a sexual purpose, then the accused may be acquitted. The intoxication would have to be of such a level that the accused lacked this mental capacity.

Unlike Sexual Assault, the presence of consent is not a defence to a charge of Sexual Exploitation, and as such, neither is the mistaken belief in consent. Whether or not there was consent to the sexual activity is irrelevant to a finding of Sexual Exploitation. The law deems that any of the sexual activity covered by the offence (touching, invitation to touching, etc.) with a person between 16 and 18 years old is illegal where the accused occupies a position of trust or authority, is in a relationship of dependency with the young person, or is in an exploitative relationship with the young person. If these elements are proven, the offence is established irrespective of consent.

How are charges of Sexual Exploitation and Child Pornography connected?

Where the case involves a Child Pornography-related charge, there can also be a charge of Sexual Exploitation. For example, where the person is accused of Making Child Pornography under s.163.1(4), he or she could also be charged with Sexual Exploitation if the accused occupied a position of trust or authority in relation to the victim; is a person with whom the young person is in a relationship of dependency; or is in a relationship with a young person that is exploitative of the young person.

Quick Facts

What defines Sexual Assault in Canada?

Sexual Assault is an offence in Canada under s.271 Criminal Code. In short, a sexual assault is an assault of a sexual nature where the sexual integrity of the victim is violated. A sexual assault can happen between both men and women and does not depend on the nature of the relationship.

How to Defend Sexual Assault?

Many allegation of sexual assault are advanced on words alone or without any physical evidence. A common defence is consent or a mistaken belief in consent to the alleged contact. Other times an accused may argue the assault was not sexual in nature and therefore not a sexual assault.

What is Sexual Harassment?

Sexual harassment is often confused with sexual assault. As the name implies, harassment is repeated and unwanted communication or contact of a sexual nature. Many times sexual harassment is not enough to constitute a sexual assault, so the police may not lay charges. However, a victim often has other remedies at work or where the behavior is alleged to have happened.

What is Consent?

Consent is often defined as the voluntary agreement of the complainant to engage in the sexual activity in question. Many sexual assault cases come down to whether there was consent and if the complainant was capable of giving consent.

What is the Punishment for Sexual Assault?

Sexual assaults are serious offences which are often punished by jail and a criminal record. The person convicted of sexual assault will also be required to submit their DNA and be on the Sex Offender Information Registration Act.

What if there was prior sexual contact?

Just because someone had prior sexual activity with the complainant, doesn't mean they won't be charged with sexual assault. Many times people are charged with sexual assault after having consensual prior sexual activity. This can happen between couples who are married or previously in a relationship. The defence will be required to bring a s.276 application to advance that evidence at trial.

What is a s.276 Application?

These are special applications in sexual assault trials. At these hearings that happen before a trial, a judge may choose to admit evidence of the complainant's past sexual history in certain limited circumstances for the defence. The defence could then argue that based on the prior sexual history between the parties, there was no sexual assault

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