Just being accused of a sexual assault can be devastating.  But being convicted of a sexual assault is even worse: a conviction can lead to a loss of your livelihood, your reputation, to you being continuously monitored as a sex offender, and for many if not most sexual assaults, going to prison. Indeed, while not the case for sexual assaults, convictions for certain other sexual offences can even carry mandatory prison terms. 

That said, if you are charged with a sexual assault or some other sexual offence, remember that you are still presumed innocent in law.  You have the right to defend yourself.  You have the right to due process.  And you have the right to be heard.  

Delving Into the Law as It Relates To Sexual Assault

In Canadian law, a sexual assault is an assault in which the complainant’s sexual integrity is violated; it involves non-consensual touching that is of a sexual nature.  Importantly, the accused need not necessarily have a sexual purpose in mind during that non-consensual touching: disciplining or humiliating a person in a sexual manner is a sexual assault.  

Because the absence of consent to the touching is a required element of the offence, it falls on the Crown to prove that absence of consent beyond a reasonable doubt.  But since consent at the time is determined based on what is in the mind of the complainant, if the trial judge believes that the complainant subjectively did not consent to the touching as it occurred, the Crown will have proved an absence of consent.  There are also limitations on when consent can be claimed or not claimed in attempting to rebut the prosecution’s case. 

Consent:

  • Cannot be assumed or implied;
  • Can be established by the complainant’s words or by some positive actions but is not established through the complainant’s silence or simply by the complainant not saying ‘no’ or by her just acquiescing to the touching; 
  • Cannot be given if the complainant is in a state of incapacity, including by drugs or alcohol, or if the complainant is unconscious or asleep;  
  • Cannot be obtained through threats or coercion; 
  • Cannot be given if the perpetrator abuses a position of trust, power or authority; and 
  • Can be withdrawn at any time.

Age and Consent in the Eyes of the Law 

Consent also cannot be claimed where the complainant is under the age of 16 except in very limited circumstances (persons aged 12 or 13 can consent to sex with a person no more than two years their elder and who are not in a position of trust; persons aged 14 or 15 can consent to sex with a person no more than five years their elder and who are not in a position of trust).  

Mistaken Belief in Communicated Consent 

There is a defence in law that may be available where the accused had an honest but mistaken belief in communicated consent.  This defence may apply where there is evidence of a denial of consent or a lack of consent, but which is nevertheless interpreted by the accused as consent.  The defence requires, among other things, evidence that the accused believed the complainant was consenting and evidence of a state of ambiguity which explains how lack of consent could have honestly but mistakenly been understood by the defendant as consent.  Of course, to succeed in mounting this defence, the defendant cannot have been wilfully blind or reckless as to whether the complainant was consenting; the defendant must also have paid appropriate attention to the need for consent.

It suffices to say that the laws surrounding sexual assault, consent, and defences relating to consent are complicated, which is part of the reason why it is critical that anyone charged with sexual assault obtain capable legal representation immediately. 

Why It Is Important To Hire Counsel if Charged With a Sexual Offence

Unrepresented persons are almost inevitably at a disadvantage when it comes to defending themselves if charged with any criminal offence.  But this is especially the case when charged with a sexual offence.  There are a few reasons for this, including:

  • The rules and procedure about what sort of evidence can be led by the defence at trial in a sexual assault case have become increasingly complicated.  Even things that most people would consider important, like any prior sexual history between the accused and the complainant, or text message correspondence between the parties, is (almost inevitably) presumed inadmissible subject to an application where the evidence is ‘vetted’ by the judge before the evidence is even allowed to be heard at trial. These pre-trial applications, among other things, need to be in writing; meanwhile, it falls on the party bringing them (i.e. the accused) to persuade the Court that they should even be able to lead what may be very important evidence in their defence at trial.  Without the required legal training and without keeping up to date with the constantly evolving law in this area, a self-represented person is at a distinct disadvantage in knowing when or how to bring these pre-trial motions. 
  • Self-represented litigants in sexual assault cases will not be permitted to personally cross-examine the complainant anyways.  Instead, the court will appoint them a lawyer for this part of the trial; however, that appointed person is not their lawyer and has a duty to the court, not to the accused. This appointed lawyer often does not have enough in the way of background about the case to cross-examine a complainant as effectively as hired counsel would; and
  • More generally, unrepresented persons may have difficulty persuading prosecutors to withdraw charges or offer creative resolutions to non-sexual offences instead, given they do not have experience dealing with the prosecutor (let alone, experience dealing with the specific Crown prosecutor assigned to the file).  Even reasonable proposals, when advanced by self-represented persons, may not be taken as seriously as they would be if made by a lawyer who has a proven track record both in court and at the negotiating table.

All of this is to say, if you are being investigated or have been charged with a sexual assault or other sexual offence, do not try to represent yourself.  Instead, consult with a lawyer immediately.

* This blog is not intended and does not constitute legal advice.  Instead, it is intended only to provide some preliminary, legal information about the law relating to sexual assault in Canada.  If you are being investigated or have been charged with a sexual offence, contact a criminal defence lawyer immediately

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