Sexual Interference Defence Lawyers in Toronto

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TORONTO SEXUAL INTERFERENCE LAWYER

We have a dedicated practice to vigorously defending allegations of Sexual Interference. These charges frequently surface decades later and are hard to prove. The Firm finds itself defending people accused of sexually assaulting family members decades ago, where there is no longer any physical evidence and memories are clouded. The clients we handle range from students to retired individuals and professionals. Nearly always, the people who contact us have no criminal record and have never been contacted by the police.

We frequently defend new allegations of sexual touching against children which are alleged to have occurred years or even decades prior, these cases are often reported to family and then to Children’s Aid Society who initiates a police investigation, including an internal investigation of their own. We are often retained prior to the police being informed to mitigate potential adverse consequences for the accused. The police also investigate these types of offences differently than traditional crime, there is a greater emphasis on interrogation of the accused because there is often no physical evidence, we are often hired to assist and prepare the accused for this process.

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 February 2018, the Firm secured a withdrawal of 11 Sexual Assault and Sexual Interference charges made against a family member three child complainants in R. v. Z.C. [2018]. The Firm secured a withdrawal of an allegation of Sexual Assault against a Jehovah Witness in its R. v. R.K. [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 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, this is perhaps the most extreme example of the scope of these allegations. In January 2018, after 3 years of litigation including a trial, the Firm secured an acquittal of sexual assault, sexual interference and invitation to sexual touching from nearly 20 years ago when the complainant was a child in its R. v. D.D. [2018]. The accused was now an adult, however, the trial was conducted in Young Offenders court because it was alleged to have happened to a family member prior to the accused becoming an adult.

The Firm often defeats allegations of historical sexual assault decades ago by vigorously seeking third party records to confirm whether disclosure was made to a therapist, doctor or other individual decades ago. This material is virtually never disclosed to defence lawyers, the onus is on the accused to explore and acquire this valuable information which requires a special court application discussed below.

The Firm has defended a range of sexual assault allegations, specifically dated allegations of sexual assault and incest as far back as 1977. The Firm frequently comments to the Media on High Profile sexual interference allegations in Toronto. The Firm frequently deals with Children’s Aid Society and been featured on Global News.

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 defended a historical Sexual Assault and Sexual Interference allegation in its R. v. P.W. [2016], where the accused was alleged to have sexually assaulted his daughter in 2005. 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.

Global News: Historical Sexual Assault Charges and Bill Cosby.

Global News: Riding solo: What age should kids take transit alone?

AM900 CHML: Children’s Aid Society has too much power.

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

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

Sexual interference

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

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?

Prior Sexual History

If I had a Sexual Relationship with the Person Accusing me of Sexual Assault can I use that Evidence at Trial?
When Can you use Evidence of the Complainants Sexual History?
What Types of Past Sexual History Evidence is Excluded at Trial?
If the Person Accusing me of Sexual Assault went to a Doctor, can the Defense Use Those Records?
What is the Process for Having a Record Relating to the Complainant or Witness Produced for the Accused?
What Type of Records can be Used?
What Type of Records Cannot be Used?
Can Records of Historical Sexual Assault Allegations be Used Against me?

Additional Resources

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

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.

The information that is collected in the database can include the offender’s:

  • name and alias
  • date of birth and physical description
  • address of main and secondary residences
  • telephone numbers
  • address of educational institution
  • employment type and address
  • vehicle information (owned or used regularly)
  • name and address of offender’s volunteer organizations
  • offence information
  • photograph of the offender is taken
  • Driver’s Licence
  • Passport Information

s.490.012 of the Criminal Code sets up the mechanism by which convicted sexual offenders are required to register with the SOIRA database. The Criminal Code has a list of “designated offences”, and if a person is convicted of one of them, or found not criminally responsible on account of mental disorder, he or she is issued a SOIRA order. The SOIRA order requires the offender to register with the database, and re-register annually for a specified time period (see below).

The “designated offences” include:

  • 151 Sexual Interference
  • 152 Invitation to Sexual Touching
  • 153 Sexual Exploitation
  • 155 Incest
  • 163.1 Child Pornography
  • 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

Also, if a person is convicted of one of the following offences, and the Crown establishes beyond a reasonable doubt that the offence was committed with the intent to commit one of the offences listed above, the person will also be issued a SOIRA order. These offences include, among others:

  • 162 Voyeurism
  • 173(1) Indecent Acts
  • 231 Murder
  • 234 Manslaughter
  • 264 Criminal Harassment
  • 279 Kidnapping
  • 279.01 Trafficking in Persons

For a complete list of designated offences see Criminal Code s.490.011.

Once the SOIRA order is issued, the offender must register within 7 days of conviction and/or release from a custodial institution. The offender must re-register annually, and he/she must notify their registration center every time they change addresses, legal name, employment or volunteer activity. They must also register all domestic and international travel of 7 days or more.

Failure to register, providing false information or failure to update information is a criminal offence. If prosecuted by indictment, the maximum penalty is a $10,000 fine and/or 2 year’s imprisonment. On summary conviction, the maximum penalty is a $10,000 fine and/or 6 months’ imprisonment.

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

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.

 

Prior Sexual History with an Adult Complainant

If I had a Sexual Relationship with the Person Accusing me of Sexual Assault can I use that Evidence at Trial?

Generally, the answer to this question is no. As outlined in s. 276(1) of the Criminal Code the accused may not admit evidence of the complainants past sexual history to infer that the complainant was more likely to have consented to the sexual act that is the subject matter of the criminal charge, or that the complainants allegations should not be believed. This rule applies to both sexual interactions between the complainant and the accused and sexual interactions between the complainant and other individuals. There are limited exceptions to this rule as outlined below.

When Can you use Evidence of the Complainants Sexual History?

 Under s. 276(2) of the Criminal Code the judge may choose to allow the accused to admit evidence of the complainants past sexual history in situations where the proposed evidence meets the test set out in the section. To meet the test the accused must first prove on a balance of probabilities that the evidence he seeks to introduce is capable of being admitted. This means that he must show that his evidence is capable of meeting that three prongs of the test outlined in s. 276(2). The test is as follows: the proposed evidence is of a specific instance of sexual activity, that the evidence is relevant to the issue at trial and that the evidence has a significant probative value that is not substantially outweighed by the prejudicial effect that evidence will have in the fair administration of justice. If the judge/justice is satisfied that the three prongs are capable of being met, a hearing will be held for the judge/justice to determine whether or not to admit the evidence. If the judge or justice presiding over the case is satisfied that this test has been met during the hearing, the evidence will be admitted to be used at trial.

In addition to the test, Parliament has also provided the courts with a list of factors to guide them in their determination, as outlined in s. 276(3) of the Criminal Code. These factors include; it is in society’s best interest to encourage sexual assault victims to come forward, whether there is a reasonable prospect that the evidence will help in deciding the case, whether it is in the interest of justice and the accused’s right to make a full and complete defense, the right of the complainant to privacy and personal dignity, the complainants right to the full protection of the legal system and personal security, the risk that the evidence may be overly prejudicial or that it may invoke strong emotions of sympathy or hostility in the jury, and any other factor the judge or justice in the case deems relevant.

What Types of Past Sexual History Evidence is Excluded at Trial?

There are certain types of evidence, as mentioned in s. 276(1) that will never be admissible in a sexual assault trial. For example, evidence about the complainant sexual reputation will not be admissible as evidence. Evidence of past sexual encounters that are not directly relevant to the issue in the trial will not be admissible as evidence and even where the evidence is directly relevant, it may still be excluded if the judge determines that admitting it would be too damaging to the fair administration of justice in the case. Finally, any evidence of past sexual activity used to show that the complainant consented to the sexual activity that is the subject matter of the criminal charge will be excluded. This means that the accused cannot admit evidence that the complainant had consented to particular sexual activity in the past to show that they must have consented on the occasion that is the issue at trial.

 

Obtaining Medical Records to Discredit Historical Sexual Offences

If the Person Accusing me of Sexual Assault went to a Doctor, can the Defense Use Those Records?

As outlined in s. 278.2(1) of the Criminal Code no record relating to a witness or complainant in a sexual assault trial will be admitted into evidence. If an accused wishes to have such a record produced because it is relevant to the issue at trial, they must make an application to the judge or justice presiding over the case.

What is the Process for Having a Record Relating to the Complainant or Witness Produced for the Accused?

Section 278.3(3) of the Criminal Code states that the application to have private records relating to the complainant or witness produced for the accused must specifically identify the record the accused wishes to have produced as well as the identity of the third party individual who is in possession of the record. In addition, the accused must show that the record is likely relevant to the issue at trial or to the trustworthiness and/or competence of the witness or complainant. The application must be made in writing. A hearing will be held and the judge/justice will often review the record to determine if it should be produced. The record will be produced where the judge determines that the record is likely relevant to the issue at trial and that it is in the best interest of justice to produce it.

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

Where the judge is satisfied that the record is relevant to the issue at trial or to the trustworthiness or competency of the complainant or witness, based on the above mentioned factors, they can order the record be produced under s. 278.7(1). The judge may order conditions be placed on the production of the record, such as requiring the record be edited or redacted in part to protect the privacy of the complainant or witness wherever possible or that the accused only have access to copies of the original records.

What Type of Records can be Used?

Only records that the accused can show are relevant to the issue in the trial will be admissible as evidence at trial. To be deemed admissible the accused must prove at a hearing before a judge or justice that the record is relevant to the issue at trial. In addition, records which have been created by an officer or any other person investigating the matter in order to prosecute the accused will not be considered protected records and must be produced for the accused to use as evidence at trial.

What Type of Records Cannot be Used?

As a general rule, any record to which the complainant or witness would have a reasonable expectation of privacy would not be admissible as evidence at trial. Some examples of such records include; medical, psychiatric, counselling, education, therapeutic, child welfare, employment, adoption and social services records, personal journals or diaries and any other record containing personal information that is protected by an Act of the Parliament or provincial legislature. If the accused wishes to have one of these documents produced they must make an application to the court arguing that the record is relevant to the issue at trial or the competency or trustworthiness of the complainant or witness. This process is outlined in greater detail above.

Can Records of Historical Sexual Assault Allegations be Used Against me?

The general rule is that the proposed evidence must be relevant to the issue at trial. Records of historical sexual assaults could be used against an accused in court where the evidence is being used to prove the identity of the suspect or the modus operandi (MO) of the suspect. For this evidence to be admitted however, it must be strikingly similar to the circumstances of the sexual assault at issue in the current case. For example, the prosecution could use evidence of the accused’s past conviction for a sexual assault to show that they likely committed the sexual assault at issue in the current trial if the past sexual assault has characteristics that are strikingly similar to those of the sexual assault in the current case. In addition, the judge presiding over the case must be satisfied that admitting the evidence of the past sexual assault will not be overly prejudicial on the accused’s right to a fair trial. The prejudicial value must not outweigh the probative value of the evidence.

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