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
1. Sexual Misconduct at Work
Allegations of sexual assault in an employment setting have become more common in recent years and can have a devastating impact on those who are falsely accused. Often when accusations of sexual assault or sexual misconduct are made in an employment context, the accuser will go to the human resources department at their company to make the initial report. Many companies have sexual harassment policies in place to deal with such reports.
In many cases, an employee who has been accused of sexual assault or sexual misconduct at work will be called into the human resources department to discuss the allegation(s). Employees often feel obligated and participate in these meetings and may make comments that may be used against them in the future.
When sexual assault or misconduct allegations are made in an employment context in Ontario, employers have a legal obligation under the Occupational Health and Safety Act 1990 to investigate. Employers must also have a sexual violence policy in place, which must be in writing and accessible to all employees in the workplace. When an employer receives a complaint regarding an employee, they are obligated not only to conduct a thorough investigation, but also to protect the employee who has made the complaint.
Employers are given significant flexibility in terms of whom they appoint to conduct their investigations. Many companies have an employee within the company that is responsible for such investigations, such as a senior manager or human resource manager. Other companies may choose to hire an external independent investigator to conduct workplace investigations. Whoever the employer selects to conduct the investigation must have sufficient knowledge of the company’s sexual violence policy.
In rare cases where the allegations are more serious and the Ministry of Labour is dissatisfied with the investigation as conducted by the employer, they may conduct their own investigation. Some law firms also specialize in workplace sexual harassment policies and may be hired by an employer to conduct an impartial investigation.
Once a thorough investigation has been completed, the employer is legally obligated to provide the complainant and the accused with the results of the investigation, in writing. The employer is also legally obligated to enforce its sexual violence policy and take action against an employee who has been found to have committed sexual misconduct in the workplace.
Where an employee has been wrongfully accused, in some cases the investigation will uncover the truth and exonerate the impugned employee. This is not always the case, however. In some circumstances the original accusation is enough to seriously damage an individual’s reputation and can negatively impact their career path. This is especially true where the accused participates in the investigation process.
In situations where an individual is accused of sexual assault and criminally charged, they have the right to remain silent. This right ensures that the accused does not say anything to incriminate themselves. An accused may feel as though they have nothing to hide and want to explain the incident from their point of view. Though understandable, this course of action can have serious implications and negatively impact the accused.
Most importantly, any admissions made during an employment investigation into sexual misconduct may be used by police later in a criminal investigation and prosecution. An employer or the complainant may choose to report the incident to police which may lead to a police investigation and a possible arrest.
If you have been wrongfully accused of sexual assault or misconduct at your place of employment, it is important to contact qualified legal counsel as soon as possible. Even a false accusation of sexual misconduct in the workplace can result in negative consequences including being terminated from one’s place of employment and being charged with a criminal offence. Our Firm can help you navigate through the process of clearing your name and ensure the allegation does not bleed into other aspects of your life.
2. University and College Prosecution
Allegations of sexual misconduct at a college or university can have very serious implications on various aspects of an individual’s life including their ability to continue their education. Additionally, an accusation of sexual misconduct or sexual assault in an educational context, even if false, may result in criminal charges being laid against the accused.
In 2016, the government of Ontario introduced legislation on sexual violence on college and university campuses across the province. Ontario Regulation 131/16: Sexual Violence at Colleges and Universities stipulates that colleges and universities across Ontario must create and implement appropriate policies to address sexual violence and harassment on campus.
The policies must include information regarding support services available to victims, the various accommodations available to victims on campus and how they can be utilized. The policies must inform students that they are not required to make a formal report regarding the incident but may if they wish to. Students must be made aware that they may still access the various support services both on and off campus regardless of whether they file a formal complaint. The policy must inform students of the processes and procedures for filing a formal complaint should the student choose to do so. Finally, the policy must inform students of the processes and procedures associated with the investigative process as well as possible disciplinary actions available.
All of these regulations require colleges and universities to take any and all reports of sexual violence and/or harassment on campus very seriously. This can mean that even false reports are vigorously investigated and prosecuted. Depending on the severity of the alleged incident, a student accused of sexual assault or harassment on campus may be suspended from classes for the duration of the investigation.
In situations where the student has been wrongfully accused, interim consequences such as a suspension can have serious implications on their educational career including loss of tuition funds and a delay in the student graduation date. Even if the student is ultimately cleared of the allegations, any interim consequences can have a lasting effect on the student.
In addition to consequences relating to an accused individual’s education, being wrongfully accused of sexual assault or harassment can result in criminal charges being laid against the accused. Students are often pressured or feel compelled to make a statement to university or college investigators. While someone who has been wrongfully accused may wish to cooperate with the investigation because they feel they have nothing to hide, this is not always the best course of action.
Anything said to a college or university investigator may be used against the accused in a prosecution led by the educational institutional. Additionally, the police may use the statements to file charges against the accused and prosecute them in criminal court.
If you have been accused of sexual misconduct or harassment on campus it is important to contact qualitied and experienced legal counsel immediately. Our Firm can assist you in navigating through the process and ensuring that the allegations do not spread into other aspects of your life. We can assist in drafting a reply to the allegation(s) to ensure your name is cleared.
3. Sexual Assault within the Family
Allegations of sexual misconduct or sexual assault within a family can have devastating implications on the accused and other members of the family. This is especially true where the allegations are false. An individual who has been accused of sexual assault in a family context could be charged with sexual assault, incest, invitation to sexual touching or sexual interference.
In some cases, false allegations of abuse or sexual abuse may be leveled during a contentious parental separation. The allegations may be intentionally fabricated or, in other cases, may result from misunderstandings and lack of trust between parents. An accuser may believe the allegations they have leveled but may have misunderstood what occurred. This is more common in cases involving young children.
Sexual assault cases, especially those involving children, can be particularly complicated. As a result, a significant portion of allegations are never proven in criminal court. In criminal cases of this nature, the onus is on the accuser to prove the allegations beyond a reasonable doubt. This can be difficult where there is little to no physical evidence, which is often the case with sexual assault charges. Additionally, young children may not be able to provide the details of the abuse necessary to convict the accused. While children are often able to clearly recollect their abuse, they may also be susceptible to manipulation by trusted adults. This manipulation may lead to distortions in the child’s memory of what occurred.
Where children are involved, the Children’s Aid Society will almost always become involved. They will launch an investigation of their own into the matter to determine whether the child(ren) is safe in the house. If they determine that abuse has occurred or that the child is at risk of being harmed, they may initiate court proceedings to have the child removed from the home.
If you have been wrongfully accused of sexual misconduct or sexual assault by a family member, it is important to protect your rights. The most effective way to accomplish this is to hire experience legal counsel to guide you through the process. Donich Law has experience defending individuals wrongfully accused of sexual assault by a family member.
Sexual assault allegations within the family may also stem from historical incidents. It is common for victims of sexual abuse to take years or even decades to come forward with their allegations, especially when the accused is a member of the family. Click here to know more about defending sexual interference.
4. Criminal Prosecution
Being wrongfully accused of sexual assault or sexual interference can have very serious implications on an individual’s life. In today’s political climate, even those wrongfully accused of sexually based offences often experience an array of negative consequences including employment, education, personal and travel consequences.
In many criminal cases involving sexual allegations, the only evidence offered is often the statement of the alleged victim. This leads to he-said-she-said scenarios where it is the accused’s word against the word of the alleged victim. In these situations, where the allegations being made are false, the accused will often have to fight the allegations at trial. To do this successfully, the defence must convince the Court that the complainant’s version of events is not believable. This is often done by impeaching the complainant as a witness during trial, by pointing out inconsistencies in their testimony.
As with any criminal matter, the best defence will depend largely on the facts of the particular case. The best way to impeach the credibility of a wrongful accuser will vary from case to case. Our Firm has experience defending individuals who have been wrongfully accused of sexual assault and can help you develop the correct strategy to ensure the best possible outcome for your case.
5. Historical Sexual Assault
In Canada, there is no statute of limitations on sexual offences including sexual offences involving children. This means that an individual accused of sexual assault or another form of sexual abuse may be arrested and charged years and even decades after the alleged incident(s) occurred. When historical sexual assault allegations are levied, law enforcement will investigate. Gathering evidence in these cases can be difficult due to the significant amount of time that has passed. If any physical evidence did exist it is likely to have been destroyed. Additionally, the memories of the victim or possible witnesses could have deteriorated so as not to be reliable.
As a result of this lack of evidence, historical sexual assault cases can be both difficult to prosecute and to defend. Many cases become he-said-she-said situations, with the only evidence being the statements of the complainant, the accused, and any witnesses. In these situations, for an accused to be convicted, the Crown must prove, beyond a reasonable doubt, that the accused committed the crimes as charged.
When defending an individual who has been wrongfully accused of a historical sexual assault, it is important to impeach the credibility of the complainant and any witnesses bolstering the complainant’s version of events. This is done by showing that the complainant and/or witness is not being truthful or does not have a reliable memory of what occurred.
Due to the complicated nature of historical sexual assault cases, it is important to contact experienced legal counsel if you have been wrongfully accused. If you are charged with a historical sexual assault, you can expect specific prohibition orders restricting your contact with children.
6. Recent Cases we Have Defended
In 2022, the Firm successfully represented an accused in custody serving a lengthy sentence on another set of charges in R. v. A.B. . The accused was arrested and charged with assault with a weapon, assault, assault (choking), cruelty to animals and sexual assault after his ex-partner alleged physical abuse in the family that occurred years prior. The assigned Crown sought a significant penitentiary sentence on initial screening of the file due to the seriousness of the allegations. After significant Crown delay, the Firm put forth an 11(b) argument, stating that the court had violated the accused’s right to be tried within a reasonable time. After reviewing the delay, the Crown significantly reduced their position and withdrew the sexual assault, assault (choking), assault with a weapon and cruelty to animals charges.