Defending yourself against sexual assault charges in Canada

Facing charges of sexual assault or sexual-related crimes in Canada is an extremely serious matter. While sexual offenses are among the most common criminal charges in the country, the way they are prosecuted and the special rules that apply can be challenging to understand. Defending sexual assault cases requires highly specialized legal expertise. Even experienced criminal defense lawyers often decline to take on such cases due to their complexity and the ever-changing legal landscape.

To begin with, there are highly complex rules of evidence that may seem counterintuitive to the general public. Here are a few examples:

Sexual Assault Charges in Canada Defnding Sexual Assault Charges

Inadmissibility of Previous Sexual Activity:

Under Section 276 of the Criminal Code of Canada, any reference to previous sexual activity, habits, or proclivities between the parties involved, or any sexual activity of the complainant, is generally considered inadmissible. This evidence can only be admitted if the accused, typically through their lawyer, demonstrates that it is relevant and necessary for a full defense. This determination is not straightforward and involves balancing various factors, including the complainant’s privacy rights and the avoidance of stereotypical reasoning.

For instance, if an individual charged with sexual assault wishes to explain that the alleged consensual sexual activity always followed a certain pattern due to the complainant’s prior requests, it is not permitted unless a comprehensive application is submitted well in advance, allowing all parties, including the prosecutor, the complainant through their counsel, and the court, to consider and argue the issue.

Such applications can often be more complicated, time-consuming, and expensive than the trial itself. Failure to file such an application within the prescribed timelines, as required by law and the court, will render the evidence inadmissible.

Inadmissibility of Text Messages and Other Communications:

Legislation passed after the Jian Ghomeshi case has made it challenging for an accused person to present text messages or other private communications with a complainant to challenge their credibility. An accused must file a special application under Section 278.94 if they intend to rely on any communications in which the complainant may have a reasonable expectation of privacy. The definition of such communications is quite broad in legal terms, encompassing nearly all written communication.

For instance, consider a scenario where two individuals engaged in sexual activity, and immediatley afterward, one sent a text expressing enjoyment and anticipation of more. Months later, the other individual claims they were sexually assaulted.

While it may seem obvious to cross-examine the complainant at trial using this text to demonstrate consent, this is not guaranteed. It falls upon the accused to convince the court of its relevance through a complex, costly, and time-consuming application, similar to the one discussed earlier.

Failure to file such an application well in advance of the trial will result in the evidence being ruled inadmissible.

Other Counterintuitive Rules of Evidence:

Beyond these two examples, there are numerous other aspects of evidence that may be presumed inadmissible in a sexual assault trial, even though they may seem relevant to those unfamiliar with such cases.

These include:

  • the complainant’s character,
  • past allegations that were believed to be false,
  • unrelated lies told by the complainant,
  • the nature of the sexual relationship between the accused and the complainant,
  • flirtatious behavior leading up to the sexual activity,
  • post-activity behaviour of the complainant,
  • attire of the complainant
  • statements made to a therapist about the allegations,
  • the complainant’s mental health or substance abuse issues,
  • financial status,
  • whether the complainant benefited from the allegations (e.g., through the Victims’ Compensation Fund or a lawsuit), or, whether the complainant had preferences or kinks related to sexual activity.

The list above is far from exhaustive. In essence, there is very little evidence that is automatically admissible, except for evidence directly related to the alleged crime itself. Context, narrative, personal history, character, and general conduct are generally presumed inadmissible.

Speak to a lawyer experienced in defending sexual assault cases

Given the complexity of sexual assault cases and the high stakes involved, there is no substitute for hiring an experienced lawyer who specializes in defending sexual assault and sexual-related offenses. Attempting to navigate these cases without expert legal counsel can lead to serious mistakes and adverse consequences. If you have further questions or require assistance, you may contact one of our lawyers experienced in these cases at (416) 999-8389.

Most lawyers, including our firm, are happy to provide free initial consultations to discuss these and any other case-related matters. Book an appointment, have a discussion about your case, and make informed decisions on where to proceed from there.