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Defend Sexual Assault Charges

Crime Statistics

In 2019 and 2020, 1,507 individuals were convicted of sexual assault in Canada. Of those offenders, 57% of offenders were sentenced to prison, 10% were sentenced to a conditional sentence. Just over 14% of offenders were sentenced to between six and 12 months in prison, 18% were sentenced to between one and two years in custody, and 25% were sentenced to more than two years in custody.

The Supreme Court has also signaled a change in recent years in the way sexual assault cases are handled in the criminal justice system. In the last decade, the Supreme Court has heard less than 40 cases involving a sexual assault. Of 36 cases (as of May 2022), the Supreme Court sided with the complainant (victim) in 34 cases.

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Offenders Sentenced to Custody in 2020
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Jail Between 2 Years to 6 Months in 2022
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Sexual Assault Convictions in 2022
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Recent Sexual Appeals Heard by the Supreme Court

Our Experience

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 also 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 helped students, employers and employees handle sexual misconduct investigations at work. These are situations where the police have commenced an investigation against the individual without formal charges being laid.

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.

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 withdraw 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.

Sexual Assault Trial Challenges

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. The charge was ultimately withdrawn after approximately 2 years of litigation. Defending historical allegations of sexual assault are difficult. The defence must always have a theory as to why the complainant would advance these allegations. It’s not effective enough to simply raise a reasonable doubt without a strong theory of the defence.

In the Firm’s R. v. D.D. [2018], it secured an acquittal 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 unrelated, but being litigated simultaneously. The accused testified with independent defence witnesses and was believed.

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. We were able to provide this evidence directly to the investigating officer discrediting the complainant even before charges were laid. This avoided the court litigation and the accused being fingerprinted and photographed.

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.

Common Sexual Assault Defences used by Lawyers

Donich Law - International Child Pornography Investigations we have Defended

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. Defending charges with multiple complainants is difficult because the Crown will often advance a similar fact application which will be used to bolster the credibility of the complainants and Crown theory.

In 2022, the Firm defended an individual charged with assault (choking), assault, sexual assault, cruelty to animals and assault with a weapon in R. v. A.B. [2022]. The accused was charged after allegedly assaulting his wife, children, and the family dog and the Crown was seeking a significant penitentiary sentence. After significant Crown delay, the Firm set dates to make an 11(b) argument, leading to the Crown significantly reducing their position. The Firm ultimately secured the withdrawal of the assault (choking), sexual assault, cruelty to animals and assault with a weapon charges.

In 2021, the Firm represented an accused charged with sexual assault after allegedly assaulting an ex-wife 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.

The Firm has also defended Civil Actions of historical sexual assault which often arise in the context of criminal proceedings. These claims often seek millions in damages and face similar trial challenges associated with criminal defence. It’s is not uncommon for the accused to be prosecuted criminally, only to be served with a Statement of Claim once the sentence is complete. Depending on how the criminal case is handled, it could adversely affect the probability of success for the civil proceedings.

New Changes to Sexual Assault Laws in 2023

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.

The same month, the Firm further secured a withdrawal of sexual assault against the owner of a private hotel in Toronto, 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]. Law enforcement even used the unusual procedure of requiring the accused to take a lie detector test. The firm was able to establish based on its theory that the allegations were false.

In 2016, after a multi-day trial 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 complainant 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 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].

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Frequently Asked Questions

What will Happen if I am Accused of Sexual Assault in Toronto?

When an allegation of sexual assault is made to police, the police will require the complainant make a formal, video tapped statement regarding the alleged incident. If the police believe a criminal offence has occurred, they will lay charges against the accused person.

Depending on the nature of the alleged assault, the police may attend the accused’s residence or place of employment without warning and place them under arrest. In other situations, the police will call the accused and request that they turn themselves in to police. Which route the police choose to take will depend on a number of factors including the criminal history of the accused, the nature of the alleged assault, whether the accused and complainant are known to one another and any other relevant factors.

If police attend the accused’s residence or place of employment, they will place the accused under arrest and transport them to the station for questioning. The police will then decide whether to release the accused or hold them for a bail hearing. Where an accused turns themselves in to police willingly, they may also be held for a bail hearing. In cases of sexual assault, there is a higher likelihood that the accused will be held for a bail hearing.

How can I be Charged without Any Evidence?

It is a common misconception that an individual cannot be convicted of sexual assault without any real physical evidence. In reality, the only evidence available in most sexual assault cases is the statement and testimony of the complainant. In many sexual assault trials, the testimony of the complainant is the only evidence available, and the only evidence presented.

When a person reports a sexual assault, they will be required to provide a videotaped statement to police. That statement will form the basis of the charge(s). At trial, the complainant will then be required to testify regarding the alleged assault. Defence counsel will be provided an opportunity to cross-examine the complainant on their statement and ask questions about any inconsistencies. If the testimony of the complainant is believed by the judge and/or jury, that evidence will be enough to convict the accused.

It is not necessary for there to be additional physical evidence such as DNA or and additional witness testimony. Due to the nature of sexual assaults, there is rarely other people around who actually witnessed the event.

What happens at a Sexual Assault Trial in Toronto?

At a trial for sexual assault, the Crown bears the burden of proving the accused is guilty of the offence they have been charged with. The Crown must prove the accused’s guilt beyond a reasonable doubt, which is a very high standard.

The Crown begins by presenting their case. This is done by calling witnesses to testify before the Court. The Crown will call its first witness to the stand and ask them questions. This is known as examination in chief. In a sexual assault case, the complainant is typically the main witness.

After the Crown as completed its examination in chief of their first witness, the defence will be given an opportunity to question that witness about the evidence they just provided. This is known as cross-examination. The purpose of cross-examination is to allow the defence to point out any inconsistencies or reliability issues with the evidence provided during examination in chief.

Once the defence has finished their cross-examination of the first witness, the second Crown witness (if there is a second witness) will be called to the stand, and the process of examination in chief and cross-examination will repeat.

Once the Crown has finished with all its witnesses, the defence will be provided an opportunity to call witnesses, including the accused. The defence is not required to call any witnesses and the accused cannot be forced to testify. If the defence does call a witness, the Crown will also be given an opportunity to cross-examine that witness.

In many cases, the testimony of the complainant and/or witnesses is the only evidence presented. Once all the witnesses have finished testifying, both the Crown and defence will make final submissions to the court regarding the evidence presented, after which the trial is complete. The judge and/or jury will then decide whether the accused is guilty.

How long do Sexual Assault cases take to Complete in Toronto?

The amount of time it takes to complete a sexual assault case can vary significantly from one case to the next. Since each case is unique, the amount of time and resources it will take to prosecute or defend a particular case may be much different from case to case. In situations where the accused pleads guilty, the case will typically resolve more quickly than if the matter goes to trial. Sexual assault cases in Toronto often take a year or more, even where the accused pleads guilty.

Where the accused chooses to go to trial, the Crown has between 18 and 30 months to get the accused to trial. Where the matter proceeds in the Ontario Court of Justice, they will have 18 months to bring the accused to trial. This timeline excludes any delay caused by the accused or their counsel. Where the trial proceeds in a Superior Court, they have up to 30 months to bring the accused to trial. These timelines exclude any delay caused by the accused or their counsel.

Complainant’s Role in a Sexual Assault Trial

When an individual is sexually assaulted and report the assault to police, police will take a formal statement from the victim. The complainant’s statement will be videotaped and will become a key piece of disclosure once charges are laid against the accused. Once the police have taken the complainant’s statement and have determined there are grounds to lay charges they will arrest the accused, beginning the criminal process.

Once the police have laid charges, the complainant has minimal involvement in the criminal process leading up to trial. The complainant does not have any say in how the case proceeds, though the Crown will consult with them before accepting a plea deal. Reasonable input from the complainant will be considered, though it is not a deciding factor. Ultimately, it is the Crown who determines the trajectory of the case. The matter is not the complainant vs. the accused, it is the government vs. the accused.

If the matter goes to trial, the complainant generally will be the Crown’s main witness. They will testify at trial and the defence will be provided with an opportunity to cross-examine them. If the accused is found guilty, the Crown will consider the opinion of the complainant regarding sentence, but that will not be a determining factor. The complainant will also be given an opportunity to read a victim impact statement if the accused is found guilty. The sentencing judge will consider this statement when determining the appropriate sentence.

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Recent Cases

R. v. Hussein Ali Kelkas, 2020 ONSC 3156

In the Ontario Superior Court case of R. v. Hussein Ali Kelkas, the offender was convicted of three counts of sexual assault involving two different complainants. The complainants testified that the offender had penetrated them both without consent while in a casual dating relationship. Both complainants provided a victim impact statement at sentencing. Multiple exhibits were introduced in addition to the victim impact statements, including a sexual behaviours assessment completed by a doctor which indicated that the offender was not low risk to reoffend.

Due to the seriousness of the allegations, the harm caused to the complainants, and the negative assessment results, the offender was sentenced to a total of five and a half years in custody minus 32 days for pre-sentence custody. In addition, the Court made a weapons prohibition order, a DNA order, and a SOIRA order.

R. v. M.C., 2022 ONCJ 282

In the Ontario Court of Justice case of R. v. M.C., the accused was on trial for one count of sexual assault after allegedly assaulting a girl he met over Snap Chat. At trial, the Court heard evidence from the complainant that the parties had engaged in light kissing and touching when the offender attempting to remove her pants and take things a step further. The complainant indicated that she told the accused she did not want to have sex, but he persisted. The defence contended that the complainant had been a willing participant and that the offender had a mistaken belief in consent.

The trial judge indicated that the actus reus (guilty action) of the offence had clearly been proven by the Crown, as there was no question that the accused had penetrated the complainant. The main issue at trial was whether the accused also had the mens rea (guilty mind) necessary for a conviction. For the accused to have the necessary mens rea, he must have known that the complainant was not consenting to the sexual activity and continued anyways.

In rendering its decision, the Court indicated that the accused had not taken reasonable steps to ascertain whether the complainant was consenting to being penetrated. The Court referenced the complainant’s young age and inexperience and the fact that the parties had only met the day prior. The Court convicted the accused, indicating the mistaken belief in consent defence was unfounded.

R. v. E.M., 2020 ONSC 6356

In the case of, two accused individuals were charged with sexual assault after engaging in sexual activity with a highly intoxicated woman in a car over an extended period of time. A key piece of evidence at trial was a two minute long video taken at the time of the assault. One of the accused’s, who is a passenger in the car, can be heard asking the complainant whether she wanted to engage in a “gangbang” several times. Each question was followed by a long pause and no response from the complainant who was in the back seat. The accused can then be heard getting into the back seat after saying “I am about to have my way with this girl”.

The complainant testified at trial that she had met up with the men while drinking at a club and had brief memories of being assaulted but could not remember large portions of the night because she had drunk too much and “blacked out”. Other parties witnessed the complainant partially nude in the back seat of the car as it was driven around over a four-hour period. The main issue at trial was whether the complainant could consent. The Court determined she could not, due to her level of intoxication.

The accused who assaulted the complainant was sentenced to 32 months in prison for the assault and the driver of the car was sentenced to 24 months in prison for being a party to the offence.

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.