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. If you have been charged or will be arrested for a sex offence, you should consider the implications of a publication ban during the proceeding.

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.

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.

Common Sexual Assault Questions

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?

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

 

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.

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