Being charged with sexual assault in Ontario is a serious matter.  A conviction will likely result in jail time and mandatory registration as a sex offender. This post outlines the basic laws concerning sexual assault and strategies for successfully defending these charges.

Do not wait to get the guidance you need.  If you are under investigation, contact Brett McGarry before speaking with the police.  A successful defence requires an immediate investigation of the background of the case and the complainant.

Definition of sexual assault

“Sexual assault” is defined as any non-consensual touching which is sexual in nature.  “Consent” cannot be obtained by force, threats, where the complainant is intoxicated or unconscious, where the accused abuses a position of trust, or where the victim is underage.  The sexual nature of the contact is determined objectively and not simply by the accused’s intent or purpose.  As such, sexual assault allegations can range from touching or kissing to sexual intercourse.

Strategies for defending sexual assault cases

Sexual assault cases typically benefit from extensive pretrial investigation and preparation.

The background of the complainant must be understood, which can require an examination of family law documents, witness interviews, medical records, psychiatric records, and related documentation.  It is also necessary to review past communications with the complainant, for example: e-mails, voicemails, text messages, social media, and cell-phone records.  The defence may retain a private investigator, computer expert, or medical expert to assist in the defence.   These sources can be used to construct a cross-examination which challenges the reliability and credibility of the complainant.

A preliminary hearing often forms the building blocks for an acquittal at a later trial.  Using the materials obtained during the investigation, the complainant can be cross-examined to discover inconsistencies and implausible elements in his or her story at the preliminary hearing.  At the actual trial, it will be difficult for the complainant to credibly change the testimony he or she provided under oath at the preliminary hearing.  A preliminary hearing also provides the basis to discover the existence of medical and psychiatric records, which can be sought at trial by making a third-party records application to the judge.

In Canada, a defendant is never required to testify because of the presumption of innocence.  However, it will often be advantageous for the accused to testify and deny the untruthful allegations against them.  If so, the defendant must be extensively prepared to testify and to withstand cross-examination by the prosecution.

Defences to sexual assault charges in Ontario

The Crown must prove the allegations beyond a reasonable doubt.  There is no burden on the accused to explain away the allegations or provide a reason why the complainant would make up a story.  Defences to sexual assault charges typically include one or more of the following elements:

• The complainant is not reliable and/or credible enough to prove the allegations beyond a reasonable doubt.

• The complainant is mistaken as to the identity of the perpetrator.

• The complainant has a motive to fabricate; for example, the complainant may be seeking to gain an advantage in a family law dispute, have a financial motive, or be seeking revenge.

• There was no touching whatsoever, or no sexual purpose to any touching.

• The complainant consented to the sexual activity.

• The accused had a reasonable mistaken belief that the complainant consented to the sexual activity.

• The judge believes the accused’s testimony that there was no sexual assault, or at least cannot reject the accused’s testimony beyond a reasonable doubt.

Special rules of evidence apply in sexual assault cases

People who charged with sexual assault are often surprised to learn that the laws of evidence provide a number of obstacles to a successful defence.  These rules of evidence include:

• A conviction can be based on the testimony of the complainant alone.  This is true even in historical sex assault cases where the memory of witnesses has faded and exculpatory evidence has disappeared in the intervening years.

• A delay in reporting the offence for years or decades will not necessarily weigh against the credibility of the complainant.

• The complainant’s sexual history with the accused or other people is generally inadmissible. (A special motion is required to introduce the prior sexual history of the complainant, under section 276 of the Criminal Code.)

• The accused has no right to access the complainant’s medical, psychiatric, or counselling records to defend himself.  (A special motion is required to access these records, under s. 278.1 to 278.8 of the Criminal Code.)

As result of these rules, the main tool at a defendant’s disposal to prove that he is not guilty is a skilled cross-examination of the complainant based on meticulous preparation by a good criminal lawyer.

Get help now

If you have been charged with a sexual offence in Ontario, Brett McGarry would be pleased to discuss the best defences for your case with you.  Email or call to arrange for an appointment.