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Defend Sexual Assault Charges

Crime Statistics

In 2019 and 2020, 1,507 individuals were convicted of sexual assault in Canada. Of those offenders, 57% of offenders were sentenced to prison, 10% were sentenced to a conditional sentence. Just over 14% of offenders were sentenced to between six and 12 months in prison, 18% were sentenced to between one and two years in custody, and 25% were sentenced to more than two years in custody.

The Supreme Court has also signaled a change in recent years in the way sexual assault cases are handled in the criminal justice system. In the last decade, the Supreme Court has heard less than 40 cases involving a sexual assault. Of 36 cases (as of May 2022), the Supreme Court sided with the complainant (victim) in 34 cases.

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Offenders Sentenced to Custody in 2020
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Jail Between 2 Years to 6 Months in 2022
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Sexual Assault Convictions in 2022
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Recent Sexual Appeals Heard by the Supreme Court

Our Experience

In 2022, Donich Law defended a client charged with sexual assault, choking, assault, assault with a weapon and cruelty to animals in R v. A.B. [2022]. The charges stemmed from assaults that were alleged to have occurred several years prior when the accused and complainant were in an intimate relationship. There were separate allegations related to alleged offence on the children as well. Due to the serious nature of the allegations, the Crown sought a lengthy prison sentence. Shortly after being arrested, the accused plead guilty on another set of charges and was sentenced to a length period of incarceration, further complicating matters. After setting trial dates, the Firm launched an 11(b) argument citing significant Crown delay in producing basic disclosure items. The Crown reviewed the delay and agreed to withdraw the most serious charges.

In 2021, the Firm defended an individual charged with sexual assault in R. v. C.B. [2021]. The accused was charged after a domestic dispute with his ex-wife. The Firm uncovered previous false allegations of domestic violence leveled by the complainant. After a year and a half of pre-trial meetings with the Crown, the Firm was able to secure a withdrawal of the charge. To achieve this result, the Firm was required to proceed to trial. It’s not uncommon for the Crown to conceal weaknesses in their case and only reveal them if the accused decides to fight the charges. The Crown could withhold deficiencies in their case with the hope the accused will plead guilty.

In 2021, the Firm represented a client charged with sexual assault after allegedly touching a friend without consent in R. v. D.P. [2021]. The allegation was unprovoked and occurred when the accused was walking through a park with his friend. The facts seemed strange and the Firm had mental health concerns about the accused. These were unknown to his parents at the time, so the Firm requested they be investigated. The Firm ordered a psychological assessment of the accused which raised concerns about underlying mental health issues, his decision making and mental fitness. Ultimately, the Firm was able to negotiate with the Crown to secure a withdrawal of the charge.

Sexual Assault Trial Challenges

In 2021, the Firm represented an individual charged with sexual assault and assault after allegedly choking a classmate in R. v. Y.F. [2021]. In preparation for trial, expert witnesses were hired by both the Crown and defence and text message evidence was tendered as proof of the alleged assault. The Firm ultimately secured an acquittal after a seven day trial. Sexual assault cases are difficult to have withdrawn, especially where the complainant is motivated to proceed to trial. This has created, in some circumstances, longer trials for these charges and less plea deals.

In 2020, the Firm represented an accused charged with forcible confinement and sexual assault after allegedly assaulting an employee inside the office of his restaurant in R. v. M.Z. [2020]. At trial, the Firm proved during cross-examination that the complainant had not been truthful in the evidence she originally gave to the court. The accused was acquitted of all charges. It is important for the defence to have a good plan and theory before trial. Sexual assault trials are defeated by attacking the evidence with strong procedural defences. There are new rules with respect to how evidence is introduced at trial for sexual assault charges which must also be considered.

Common Sexual Assault Defences used by Lawyers

Donich Law - International Child Pornography Investigations we have Defended

The Windsor Police Service tracks statistics on sexual assault. As of 2020, the WPS reported 161 non-family sexual assaults that year, which amounts to an assault every 2.27 days. The distinction between non-family and family assaults is notable because assaults that take place in the context of a relationship of trust and authority, such as a family, can increase the sentence offenders face upon conviction. 45 family assaults were reported in 2020, or one assault every 8.11 days. To aid victims of sexual assault, and all crimes, the WPS has an established Victims Assistant Unit that can provide a variety of services. A victim of sexual assault in Windsor can also report it online.

In 2020, the Firm defended an American entrepreneur charged with sexual assault after allegedly assaulting a woman inside a Toronto hotel in R. v. K.H. [2020]. The accused was acquitted at trial. This result was achieved by challenging a Crown request for a Darville adjournment. Although the Crown was initially successful, the defence was able to prevent the second application which created an evidentiary problem for the Crown. The accused has rights so it’s important to ensure a defence team protects them as part of a trial strategy. Defending sexual assault charges is difficult, the Crown will often prioritize their prosecution and be willing to lose less serious cases to ensure they are properly brought to court.

In 2019, the Firm represented a client charged with several historical sexual assault offences allegedly committed when he was a youth in R. v. A.E. [2019]. The allegations stemmed from incidents allegedly occurring in 1985. After a year of litigation, the Firm was able to present evidence to show that the allegations had been fabricated and the charges were withdrawn. The defence also had a strong theory to support its defence and was able to show the dispute related to an inheritance. This coupled with medical evidence to clear the accused of sexual deviancy resulted in the Crown pulling the charges.

New Changes to Sexual Assault Laws in 2024

In the Firm R. v. R.V. [2022], it successfully resolved the matter without a criminal record for the accused. The client was charged with sexual assault, criminal harassment, uttering threats, and assault after his ex-partner made allegations of physical and sexual abuse as well as threats. She further alleged that after she ended the relationship the accused repeatedly contacted her despite her requests for him to cease communication. The Crown initially sought a period of incarceration upon conviction. After over a year of Crown negotiations and a significant amount of upfront work, the Firm was able to secure the withdrawal of the sexual assault charge.

In 2022, Donich Law represented the complainant in a sexual assault, incest, sexual interference, and invitation to sexual touching case in File No. ****97 [2022]. The accused was charged after the complainant, a family member, made allegations of sexual abuse. The Crown’s office initial position on sentencing was a lengthy prison term, due to the seriousness of the allegations. After experiencing significant recollection issues, the complainant determined she no longer wished to proceed with the case. The Firm was able to work with the accused’s counsel to ultimately have all charges withdrawn.

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Frequently Asked Questions

Will the Victim Have a Lawyer in Sexual Assault Cases in Windsor?

Typically, the victim of a sexual assault will not have their own lawyer during criminal proceedings. It is the role of the Crown to prosecute the accused and the victim would have no need for a lawyer to assist in that purpose. The only direct impact a victim may have happens if they provided testimony. That said, a victim can have a lawyer appointed for them by the court in cases where the accused makes a request for the victim’s personal records under ss. 276 or 278 of the Criminal Code. This request engages the victim’s right to privacy and a court-appointed lawyer will ensure that that right is respected as much as possible. The lawyer will act as a check who sees that proper procedure is followed and the accused receives only the information that is necessary to resolve an issue relevant to their defence from the victim’s medical records or other requested documents.

Of additional note, the Government of Ontario oversees a program that provides independent legal advice for victims of sexual assault. The program is available to any resident of Ontario who is at least 16 years old if the offence happened in Ontario. Anyone who completes the application process can receive up to four hours of free legal advice by phone or video call that does not include a court appearance.

What is Sexual Exploitation?

Sexual exploitation is a criminal offence set out under s. 153(1) of the Code. This provision makes it an offence for someone to touch a young person’s body, who is between the ages of 16 and 18, for a sexual purpose or to invite or counsel a young person to touch another person’s body for that purpose if the offender is in a relationship of trust and authority, dependency, or other exploitative relationship with a young person. Such a relationship may be found where the offender has a degree of control or influence over the young person. A person convicted of this can be sentenced if prosecuted as a more serious indictable offence, to a minimum of one year imprisonment and a maximum of 14 years. Or if prosecuted as a summary offence, the offender can be sentenced to a minimum of 90 days imprisonment, a maximum of two years less a day, and/or a $5,000 fine.

The Ontario Superior Court of Justice case of R. v. H.P., 2023 ONSC 182 is an example of a conviction for sexual exploitation. In that case the victim was a girl, who was exploited by her stepfather while living with him. The exploitation occurred over several years and involved the offender both touching her breasts and vagina, as well incite her to touch his own penis.

How do Sexual Assault Charges get Dropped in Windsor?

Sexual assault charges will rarely be dropped because it is not in the interest of the public for the Crown to do so. However, there are some instances where the charge will be dropped that usually involve there being no reasonable prospect of convicting the accused. This might happen where the victim withdraws the statement they made to the police. Though if the victim simply does want to proceed on the grounds that they do not want the accused to face legal consequences, the Crown may still try to prosecute the case.

In instances of minor sexual assault which may include something as simple as an unwanted hug or a quick touch of the buttocks, the Crown may agree to have the charges dropped if the accused signs a peace bond. Peace bonds are not a criminal finding of guilt. Cases where a peace bond is issued are generally those where it is not in the interest of justice to give an accused a criminal record. So, by signing a peace bond, the accused agrees to keep the peace and be of good behaviour, as well as abide by any other conditions ordered by the court for a specified period. If someone breaches their peace bond, they may be charged with a breach offence, and they will be required to pay an amount of money that was associated with the guarantee to abide by the peace bond.

What is a Publication Ban and How Does it Work?

A publication ban is an order that can be made by a court under s. 517 of the Code that prevents information related to the case from being published prior to its conclusion. Sexual assault is an offence that can severely harm an accused’s reputation, even if they are found not guilty. As such, publication bans limit the amount of speculation done in the early stages of the criminal justice process from being published until the facts of a case have been established. The ban specifically deals with any evidence of the offence, or information given, and representations made during proceedings.

Given the reputational harm an accused might suffer, the earlier an application for a ban is made the better. Such an application can be made at a bail hearing or the next earliest appearance if bail is not an issue. The application can be made either by the accused themselves, or a lawyer such as our counsel in Windsor. After the ban has been granted, the case will be referred to on the public docket of cases only by the accused’s initials instead of their name, and the information exempt from the ban is the age of the accused, the jurisdiction where the offence occurred and the specific charges against the accused.

When can Someone be Discharged from a Sexual Assault Offence?

Discharges are the lowest level of criminal sentencing. They are essentially a finding of guilt with no additional penalty. As part of the discharge, an offender does not receive a criminal record. There are two types of discharges, absolute and conditional. They are usually only offered by the Crown in sexual assault cases where the allegations are minor, and the accused has no criminal record. The offender may have to attend some form of counseling as a requirement for a discharge to become an available option.

Absolute discharges are ordered where it is not in the interest of justice to convict an offender because the conviction would have unfairly severe consequences on their life. After receiving an absolute discharge, the offender may live their life with no limitations. Conditional discharges impose a set of restrictions on an offender as ordered by a court. If the offender complies with these conditions, the record of the matter will disappear after a set time. If the conditions are breached, a conviction will be entered for the sexual assault charge against the accused.

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Recent Cases

R. v. Valley, 2023 ONSC 166

The Ontario Superior Court of Justice case of R. v. Valley demonstrates how the sentencing process changes for a sexual assault offender with a lengthy criminal record. In this case the offender was convicted of sexual assault, unlawful confinement, and breach of a probation order. The circumstances of these offences were that the offender attended a restaurant that he was legally prohibited from visiting. While there, he asked the victim, an employee working alone, for her phone number and was refused. The offender then got behind the counter, grabbed the victim from the back, choked her and sexually assaulted her. The victim did manage to break free and seek help.

Relevant to sentencing was the fact that the offender had no family and no plan for his life following the sentence. Given that and the fact that the offender had a lengthy criminal record that included other violent offences, the judge was skeptical of the offender’s chances at rehabilitation. However, as rehabilitation is a primary purpose of sentencing, it still had to be accounted for. This factor did not outweigh the seriousness of the offence and the offender was sentenced to five years imprisonment, three years of probation, issued a lifetime weapons prohibition, and DNA and SOIRA orders were made.

R. v. Knight, 2023 BCSC 624

The Supreme Court of British Columbia case of R. v. Knight sets out the criteria an accused must meet to rely on the defence to sexual assault of an honest yet mistaken belief in a person’s age. The offender in this case was charged and convicted of sexual assault and sexual interference after having relations with a minor. The offender and victim, a 15-year-old girl, had met on the bus after they had been drinking at separate events. After meeting, they and two of the victim’s friends decided to go to the offender’s apartment. At the apartment the offender and victim ended up in the bathroom where they engaged in a sexual act. The situation would have developed further had the victim’s friend not intervened and helped her leave the apartment.

The main issue of the case was the fact that the offender made no effort to discover the victim’s true age. He attempted to rely on the defence of mistaken belief in age contained within s. 150 of the Code, stating that he had made every effort to discover the victim’s age. Considering the evidence, the judge disagreed. The defence requires anyone who would claim it to make all reasonable efforts in the circumstances to discover a potential partner’s age. As in this case, an offender making reckless assumptions on this matter based on physical appearances alone does not meet the standard to escape criminal liability.

R. v. Kheyyatfeizi, 2023 ONCJ 86

The Ontario Court of Justice case of R. v. Kheyyatfeizi deals with the concept of competing testimony in sexual assault cases. The offender here was convicted of sexually assaulting the roommate of the mother of his child. The main issue of the case was whether the offender touched the victim in a sexual manner without her consent. The victim claimed that the accused hugged her without consent and then kissed and licked the back of her neck. The offender maintained that the hug was consensual and that the two later kissed.

The judge set out the following standard for assessing conflicting testimony. “I cannot compare each account and decide which account I believe. I can believe or disbelieve a witness, but still be left with a reasonable doubt after considering all the evidence. Moreover, I can accept some, all, or none of a witness’ evidence.  Frailties and/or inconsistencies in a witness’ evidence do not necessarily mean their evidence should be rejected.” [at para 22] The judge ultimately concluded that the offender’s testimony was uncredible because of one major inconsistency in his account. The offence occurred during the COVID-19 pandemic. The offender claimed that this was the reason behind his not shaking the victim’s hand when they first met. However, despite this initial precaution, the offender soon after engaged in undisputed sexual contact with the victim. This logical inconsistency undermined the value of his testimony and led to the conviction.

About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.