SEXUAL ASSAULT DEFENCE LAWYERS IN TORONTO

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DEFEND SEXUAL ASSAULT CHARGES. 416-DEFENCE.

The Firm has a dedicated practice in defending a range of sexual assault allegations, specifically dated allegations of sexual assault and incest as far back as 1977. 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 allegation from 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.

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 and prosecuted 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.

We carefully defend a range of sexual assault allegations, including offences against children. Beyond the potential for severe penal sanctions, a conviction of sexual assault has profound employment, travel and social consequences. The Firm secured a withdrawal of an allegation of Sexual Assault against a Jehovah Witness in its R. v. R.K. [2014]. It further secured a withdrawal of a Sexual Interference allegation in its R. v. J.P. [2014]. In November, 2015, the Firm secured a withdrawal of two counts of Sexual Assault where two female students fabricated an allegations of Sexual Assault in its R. v. K.C [2015]. In the Firm’s R. v. J.S. [2017], after 2 years of litigation, it secured a withdrawal of two counts of Sexual Assault where the accused allegedly sexually assaulted a Canada Post co-worker. In January 2018, after 3 years of litigation, the Firm secured an acquittal of sexual assault, sexual interference and invitation to sexual touching from over 20 years ago in its R. v. D.D. [2018].

The Firm is frequently consulted by the Media for High Profile Sex Offences in Toronto. The Firm defends a range of sex crimes, specifically Sexual Interference, Sexual Exploitation, Internet Luring, Child Pornography, Voyeurism and other related sex offences. In November, 2016, the Firm secured a withdrawal of Nine (9) Sex Offences against a Toronto TTC Driver Charged with Nine (9) Sex Crimes, including Luring. In the Firm’s R. v. D.N. [2016], after a 3 day trial, the Firm secured a full acquittal on all counts of Sexual Assault, Sexual Interference and Invitation to Sexual Touching where the accused was alleged to have sexually assaulted a 10 year old child a decade ago.The Firm further secured a withdrawal of both Sexual Assault and Sexual Interference in its R. v. P.W. [2016], where the accused was alleged to have sexually assaulted his daughter in 2005.

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 worked with professional athletes in Toronto who have been visiting or on tour and have been extorted for money, with allegations of sexual misconduct. These allegations are difficult to handle and highly time-sensitive. We have worked with doctors and professional athletes to resolve these allegations before they have been made public.

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.

When defending these allegations, we undertake a critical analysis of police evidence and witness statements. Your reputation is our priority. We also service Brampton, Guelph, London, Milton, and Newmarket.

Description: Jordan Donich comments to CityNews regarding challenges with Sexual Assault Trials in Toronto on August 9, 2017.

Description: Jordan Donich provides expert commentary to CityNews regarding Sexual Assault Prosecution on June 15, 2017.

Sexual Assault

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 History 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 Complainants Past Sexual History be used as Evidence?
What Types of Evidence will Always be Excluded?

Obtaining Medical Records

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?

Sexual Interference

What is Sexual Interference?
What are some of the Penalties for Sexual Interference?
What is Incest?
What is the SOIRA s.490.012 order?
What is the Duration of a SOIRA order?
What is a s.161 Order?

Additional Resources

Assault
Consequences of a Criminal Record
Domestic Abuse
First Offenders
Immigration Consequences
Keeping Charges Private
Travel & US Waivers

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. The Supreme Court of Canada has said that several factors are relevant when making this assessment, including:

  • The part of the body touched;
  • The nature of the contact;
  • The situation in which it occurred;
  • The words and gestures accompanying the act;
  • All other circumstances surrounding the conduct, including threats which may or may not be accompanied by force.
  • The accused’s intent or purpose as well as his motive, if such motive is sexual gratification, may also be factors in considering whether the conduct is sexual.

It is also important to note that the act of sexual assault does not depend solely on contact with any specific part of the human anatomy but rather that the act is of a sexual nature that violates the sexual integrity of the victim.

There are three offences of sexual assault outlined in the Criminal Code that criminalize sexual assaults depending on their varying degrees of severity:

  • Section 271 – Sexual Assault (encompasses all assaults of a sexual nature violating the sexual integrity of the victim not covered by the other two provisions).
  • Section 272 – Sexual Assault with a Weapon, Threats to a Third Party or Causing Bodily Harm can arise in four situations when a person who while committing a sexual assault, also does one of the following:
    • (a) Carries, uses or threatens to use a weapon or an imitation of a weapon;
    • (b) Threatens to cause bodily harm to a person other than the complainant;
    • (c) Causes bodily harm to the complainant; or
    • (d) Is a party to the offence with any other person.
  • Section 273 – Aggravated Sexual Assault occurs when an accused, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.

As such, 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 eighteen months 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.

“Wounding” involves breaking of the skin. For example, a stabbing would fall under “wounding” and would be prosecuted as an Aggravated Sexual Assault.

“Maiming” means to injure a person to the extent that they are less able to fight, such as breaking a person’s leg.

“Disfigurement” requires a more than temporary marring of the figure, appearance or beauty of the person. For example, a black eye would likely not be enough to meet this definition, but a significant scar on the face would.

“Endangerment of life” must involve an actual and significant risk to the life of the victim, but does not necessarily have to result in physical harm. For example, in one case, a male who was aware of his HIV infection had unprotected sex with two females. The court found that it was not necessary to establish whether the victims actually contracted HIV. The court decided that all that is required to meet the standard of “endangerment of life” is that the accused exposed the victims to an actual and significant risk to their lives as a result of his assault.

What are some of the Penalties for:

  • Sexual Assault?

The sentence received depends on whether the Crown prosecutes it as an indictable offence or by summary conviction. It is at the discretion of the Crown how they will prosecute the offence. The Crown’s 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 Sexual Assault the Criminal Code only imposes a maximum possible penalty, except where the complainant is under 16 years old in which case there is also 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.

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 18 months. 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.

Perhaps the biggest difference is that for touching to constitute Sexual Interference, it has to be for a sexual purpose. In order to meet the requirement of a sexual purpose, the accused has to have 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. This is more nuanced than the “sexual nature” requirement for Sexual Assault. Touching of a “sexual nature” does not necessarily mean that there has to be an element of sexuality or sexual gratification on the part of the accused. Instead, the court decides whether the touching was of a sexual nature with a view to all the facts, for which the sexual gratification of the accused is one of the factors to consider.

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.

A DNA order varies according to its specific terms. Generally, the order can authorize a peace officer to take bodily substances by: plucking individual hairs from the person, swabbing the person’s lips, tongue and inside cheeks of the mouth, or taking a blood sample.

A court may refuse to grant a s.487.051 DNA order in limited circumstances. The person against whom the order is sought can argue that the impact on their privacy and security of the person would be grossly disproportionate to the aim of the order. Specifically, if the intrusion on the person’s privacy and body would be so disproportionate to society’s interest in the proper administration of justice, to the extent that any concerns cannot be ameliorated by variations of the order, the court is not required to make a DNA order. The factors that a court might consider include the nature of the offense, the nature of the intrusion to the person, and the circumstances of the person who would be subject to the intrusion. However, this is often a very high standard to meet and, in most cases, the balance is in the favour of making a DNA order. There is a presumption that taking a DNA sample is justified, and only unusual cases would warrant the court’s refusal.

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.

Prior Sexual History 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 complainants 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 Complainants 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 complainants 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 complainants right to privacy and dignity, the complainants 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 complainants 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 complainants 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 complainants 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.

Obtaining Medical Records

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 complainants 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.

Sexual Interference

What is Sexual Interference?

Section 151 of the Criminal Code sets out that sexual interference is touching a person under the age of sixteen, either directly or indirectly, for a sexual purpose. To obtain a conviction for sexual interference, the Crown must prove:

  1. The complainant was under the age of sixteen at the time of the event;
  2. The accused touched the complainant;
  3. The touching was for a sexual purpose;
  4. The accused knew the complainant was under the age of sixteen or did not take reasonable steps to ascertain the complainant’s age.

What are some of the Penalties for Sexual Interference?

Penalties for sexual interference 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 151 of the Criminal Code sets out that a conviction for sexual interference can result in up to ten years imprisonment when the Crown proceeds by indictment. There is a minimum penalty of one-year imprisonment. The Crown may also proceed summarily, in which case the offence is punishable by up to eighteen months imprisonment. There is a minimum penalty of ninety days imprisonment.

What is Incest?

Incest is the act of engaging in sexual intercourse with a relative. Section 155(1) of the Criminal Code sets out that an individual commits incest when he or she engages in sexual intercourse with someone knowing that person is by blood relationship his or her parent, child, brother, sister, grandparent or grandchild.

To be convicted of incest there must be:

  • Sexual intercourse;
  • Between persons who are one of the following blood relations to each other: parent, child, brother, sister, grandparent or grandchild;
  • It must have been known the parties were of blood relation.

What is the SOIRA s.490.012 order?

A SOIRA order is an order made at sentencing pursuant to Section 490.012 of the Criminal Code for an offender to comply with the Sex Offender Information Registration Act. Orders can be made after an offender is convicted, pleads guilty or is found not criminally responsible. SOIRA orders are made after a designated sexual offence is committed. The order requires offenders convicted of sexual offences to register their information in the SOIRA database. The database is accessible to police and contains addresses, descriptions and other information about convicted offenders.

Offenders are obligated to keep SOIRA information up to date for the duration of the order. Failure to do so is a criminal offence.

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.

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