Sexual Assault Charges
In Canada, a sexual assault occurs if a person is touched in any way that interferes with their sexual integrity: this includes kissing, touching, intercourse and any other sexual activity without his/her consent.
In order for the police to charge with a sexual assault, all that is required is for the complainant to go to the police and say that the touching occurred without their consent. There is no time limit or statute of limitation with respect to such charges.
With the advent of the “Me Too” movement, it has become regular for adult women to allege sexual assaults with their then partners occurring years prior to going to the police and making the complaint. Sadly, police have little or no discretion with respect to such allegations and almost always lay a charge of sexual assault.
Similarly, the Crown prosecutor, has little or no discretion, and almost always proceeds to trial on sexual assault charges. At trial, the Crown prosecutor must prove beyond a reasonable doubt, that the touching occurred, that the accused intended to commit the assault, and that there was no consent. The Crown prosecutor is allowed to lead various types of evidence including: the testimony of the complainant; witness testimony; photographic and forensic evidence; medical records of the complainant; digital or written messaging or mail of the complainant; and admissions of the accused. All too often, the issue is consent with the complainant saying there was no consent while the accused maintains there was consent.
Often, complainants make false allegations of sexual assault. There are many reasons for this, including: jealousy; revenge; to get leverage over the accused; or to gain an advantage in a child custody or family dispute.
Alcohol or drugs are often contributing factors. In a situation like this, a complainant may have lowered inhibitions and consent to the sexual activity in question. After regaining sobriety, they may have second thoughts, or regrets or may not remember the encounter accurately. Drunken or drug-induced consent is still consent unless the complainant was so incapacitated by alcohol or a drug that they did not have the ability to consent (for example, a semi-unconscious drunken person who does not know what they are doing). The complainant may claim to have been sexually assaulted when, in fact, the sex was consensual. Alternatively, the accuser may have had a “blackout” from alcohol where they provided consent in a relatively drunken condition, but still had the capacity to consent and does not remember providing their consent.
In the defense of an accused charged with sexual assault, there are limitations on the evidence that the accused can adduce at trial. The accused is barred from adducing any documentary evidence relating to the complainant (this includes all messaging and mail to and from the complainant, videos, photos and audios which include the complainant, medical records relating to the complainant, and counselling records relating to the complainant, etc.), unless an application is brought before the trial judge to establish relevance, and an order is made allowing such evidence to be adduced. Similarly, the defense is not allowed to adduce evidence of other sexual activity, whether with the accused or anyone else, unless an application is brought before the trial judge to establish relevance, and an order is made allowing such evidence to be adduced.
A conviction for sexual assault is very serious usually results in a prison sentence, loss of employment, mandatory supervision upon release, and registration as a sex offender.
If the police are going to charge you with Sexual Assault, they will likely reach out to you and tell you that they would like to speak to you. Do not speak to the police. If they are going to charge you, they will advise you of that, and will likely ask you to turn yourself in to the police station. You should immediately call your lawyer and get legal advice. You should also make arrangements to turn yourself into the police. When you turn yourself in, you should not bring a cell phone with you, because they may seize it in a search for evidence. We recommend you write your lawyer’s telephone number on a piece of paper and bring it in with you, so that you can telephone your lawyer after arrest.
If you have been charged with sexual assault it is important that you do not speak with the police. Upon your arrest, you should assert your right to speak with a lawyer as soon as possible. If you do not already know a lawyer the police will have a list of local lawyers for you to choose from or you will be given the opportunity to speak to duty counsel, who provides free legal advice.
If the police are persistent and continue to try and question you, firmly (yet politely) tell them that you are exercising your right to remain silent. Your right to silence is protected under the Canadian Charter of Rights and Freedoms. The police may keep you in an interview room for many hours in an attempt to have you answer their questions and provide a statement. Your best course of action is to calmly repeat that you are exercising your right to silence, and then put your head down and say nothing more. Even if you are totally innocent, you will hurt your chances of winning your case if you cooperate with the police and provide them with a statement. You will simply assist them in their investigation, possibly providing evidence that makes their prosecution easier to prove. You may say something that can later be used against you at trial, including an accidental misstatement, which will be used to make you look like a liar. Do not talk to the police.
Furthermore, you should not talk to anyone other than your lawyer about the charges, because you may make that person a witness to your statements. Anything you say to your lawyer is protected by solicitor-client privilege.
It is also important if you have been charged with sexual assault that you don’t contact the complainant or anyone else involved in the case. Doing so can appear as though you are trying to get them to change their story in some way.
If you have been accused or charged with sexual assault, founded or unfounded, it is important that you contact an experienced Sexual Assault Lawyer as soon as possible. When formulating the best defence to sexual assault allegations, there are a number of important factors to consider. A lawyer will be able to assist you in assessing all relevant factors and preparing the best defence possible.