Frequently Asked Questions
What if There was No Sexual Activity?
What if There was Consent?
What if There are Mental Health Issues?
What if Alcohol or Drugs were Involved?
Sexual Assault Resources
Assaulting a Peace Officer
Sexual Assault Law in Canada
Consequences of a Criminal Record
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening
Elements of a Crime
No Sexual Activity Occurred Defence
The most basic defence to a sexual assault allegation is to argue that the accused did not commit the act that they have been accused of. In cases where an individual has been wrongfully accused of sexual assault, they can simply argue that they did not commit the act. In Canada, there is no onus on the defence to present any evidence at a criminal trial. It is the Crown who must prove beyond a reasonable doubt that the defendant committed the act(s) they are accused of. As such, in situations where the defendant maintains their innocence and argues that they did not engage in sexual activity with the complainant, they may present no evidence at trial. The burden lies with the Crown to prove that the sexual activity did in fact occur.
If, however, the Crown presents evidence at trial that tends to suggest the accused committed the offence, the defence must provide evidence to refute the evidence present by the Crown. Based on the complexity of criminal trials, even where an accused maintains their innocence, it is always advisable to hire experienced legal counsel to assist in formulating the best defence for the particular case.
The Consent Defence
In situations where it is undisputed that sexual activity occurred between the complainant and the defendant, but the defendant maintains that the sexual activity was consensual, the defence of consent may be utilized. Often, in cases involving sexual assault allegations, the primary source of evidence will be the testimony of the complainant. This tends to create a he said/she said scenario, where the complainant states that the sexual activity was not consensual and the defendant states that it was consensual. In these situations, to secure an acquittal in the case, the defendant must convince the Court that their version of events is true, or at the very least that the complainant’s version of events is not true.
When an accused is arguing consent in a sexual assault case, the defendant must convince the Court that there was either affirmative consent from the complainant to the sexual acts, or in the alternative, that the accused had a mistaken belief in consent.
For the defendant to prove that the complainant gave consent, the defendant will often have to testify to that in front of the Court. Since there are rarely third-party witnesses in sexual assault cases there is often little evidence for a defendant to present to prove that consent was given. Generally, if the defence is arguing that the complainant did in fact consent to the sexual activity and is now lying about that to the Court, the defendant will want to present some evidence to show why the complainant may have fabricated the allegations.
In addition to arguing that the complainant consented to the sexual activity, an individual accused of sexual assault may also argue that they had a reasonable mistaken belief that there was consent. Such a belief must have been reasonable based on the circumstances that existed at the time. If successfully argued, a defendant may be acquitted of the charges against him despite there having been a lack of consent. This defence has a much more narrow application and will not be accepted in many cases.
Click here to learn more about the law on consent in Canada.
The Insanity/Mental Incapacity Defence
The defence of insanity or mental incapacity is very hard to prove and as a result is very rarely utilized. Section 16 of the Criminal Code outlines the defence of mental disorder. The section states that an individual will be found not criminally responsible for the acts committed or omissions made while the individual was suffering from a disorder of the mind that rendered the individual incapable of appreciating the nature and quality of their actions or omissions, or of knowing that their actions were wrong.
There is a presumption that individuals are not suffering from a mental disorder. This means that the defence must present affirmative evidence to the Court to demonstrate that the accused is in fact suffering from a mental disorder. Further, the defence need not only prove that the accused suffers from a mental disorder, they must also prove that the accused was suffering from the mental disorder at the time they committed the act or omission. The burden lies on the accused to raise any issues of mental capacity or insanity.
In cases involving sexual assault, an accused must prove that they were suffering from a mental disorder that rendered them incapable of understanding the nature and quality of the assault they were committing and prevented them from knowing the assault was wrong. This is a high burden to meet and as a result this defence is not utilized often and is successful even less often.
If such a defence is successful, the accused may be released from police custody only if the Court or a medical review board is of the opinion that the accused no longer poses a threat to the public. If the Court or review board determine that the accused does continue to pose a significant threat to the public, the accused will be held in a secure medical facility until they no longer pose a threat.
The Defence of Extreme Intoxication
Until recently, the defence of extreme intoxication akin to automatism in sexual assault cases was not permitted in Ontario. Automatism refers to the involuntary behaviour of an individual who is not conscious. Automatism can be likened to an extreme form of sleep walking where the sufferer may carry out complex tasks like cooking or doing laundry while completely unconscious and unaware of their actions.
In the past, in very rare circumstances where an individual had become so extremely intoxicated that they were no longer aware of their actions, their intoxication could be considered a form of automatism and used as a defence to some specific intent criminal allegations. In 1995, Section 33.1 of the Criminal Code was enacted to specifically disallow this defence to be used for offences against the bodily integrity of another individual which would include sexual assault cases as well as cases involving violent crimes. The Supreme Court of Canada ruled that by becoming voluntarily intoxicated to the point of automatism, the accused was reckless and should not be absolved of responsibility for their actions.
However, in 2018 a Superior Court Justice in Ontario ruled that the federal law removing the defence was unconstitutional and violated the rights of the accused. In R v. McGraw, the Court ruled that it was unconstitutional to disallow this defence and that s. 33.1 of the Criminal Code must be struck down. By declaring the law invalid, the Court effectively reinstated the defence of extreme intoxication even in cases involving sexual assault or violent crimes.
The defence of extreme intoxication effectively attacks the Crown’s ability to prove that the accused had the necessary intent to commit the offence. By arguing that the accused was so intoxicated that they could not appreciate the nature of their actions, they cannot be found guilty of an offence requiring specific intent. As is the case with sexual assault allegations, the Crown must prove beyond a reasonable doubt that the accused intended to commit the sexual assault. If the defence can convince the Court that the intent did not exist due to extreme intoxication, whether or not that intoxication was voluntary on the part of the accused, the Court cannot convict the individual.
As with any criminal offence, the best defence will depend on the facts of the specific case. Due to the serious nature of sexual assault allegations and the serious implications a conviction can and will have on an individual’s life, it is imperative to hire experienced legal counsel. Formulating the correct defence from the beginning will help to ensure the best possible outcome in the case. Our Firm can help assess your case and guide to through selecting the most effective defence based on your particular situation.