The following defences are generally available for an individual accused of sexually assaulting an adult:
- No sexual activity defence [Denying the allegation]
- Consent defence
- Mistaken belief in consent defence
1) No Sexual Activity Defence
Where an accused claims that they have been wrongfully accused of sexual assault, they may argue that no sexual activity occurred. Essentially, the accused is arguing that the complainant is lying and has fabricated the allegations. Where the accused has clear cut evidence of their innocence, they may present that evidence to the Crown during a Crown pre-trial meeting. If the evidence proves without a doubt that the accused is innocent, the Crown may drop the charges. This, however, is uncommon. In most sexual assault cases the Crown will be unwilling to withdrawal the charges. Often the only available evidence in a sexual assault case is the statement of the complainant. Simply asserting that the complainant is lying without providing clear cut proof will almost never be successful.
As a result, where an accused asserts their innocence, often the only way to resolve the case is by going to trial. At trial, the Crown will call the complainant to testify. The Crown may also call other witnesses who have relevant information to testify at trial. The complainant and any witnesses will provide their evidence to the Court through the process of examination in chief, whereby the Crown will ask questions to the testifying witness. Once the Crown is done asking their questions, the defence will have a chance to cross-examine each of the Crown’s witnesses.
Cross-examination refers to a process where the defence asks Crown witnesses questions about the testimony they provided when being questioned by the Crown. The defence may also question the witness about statements they made in their police statement regarding the matter. The purpose of cross-examination is to destroy the reliability and credibility of the witness either by showing that they are lying, or that they do not have an accurate recollection of the events they are testifying about.
Where an accused is arguing that they are innocent of the charges because they did not engage in sexual activity of any kind, the defence must use cross-examination to pick apart the complainant’s story and create reasonable doubt about the accused’s guilt.
2) Consent Defence
One of the most common defences to charges of sexual assault is consent. The defence of consent argues that sexual activity did occur between the accused and complainant, and that both parties consented to the sexual activity. Before formulating a defence strategy surrounding the defence of consent, it is important to have a thorough understanding of the law related to consent in Canada.
Section 273.1(1) of the Criminal Code outlines the definition of consent. It states that consent refers to the voluntary agreement to engage in the sexual activity in question. Subsection 273.1(1.1) stipulates that consent must be present at the time the sexual activity in question takes place. This means that both parties must consent to the specific sexual activity at the time it occurs for consent to be valid. If the nature of the sexual activity changes, both parties must voluntarily agree to the next form of sexual activity.
For example, person A and person B are engaging in sexual activity. Both parties have agreed to have sexual intercourse. Halfway through the interaction person B begins performing oral sex on person A. Person B did not ask permission, and oral sex was not discussed at any point. While person A did consent to intercourse, they did not consent to oral sex. In this example, person B would be guilty of sexual assault for failing to get consent for the oral sex.
The Criminal Code also outlines situations where consent is deemed not to have been obtained. Section 273.1(2) states that no consent is obtained where:
- Consent is provided by someone other than the complainant or the complainant is unconscious.
- The complainant is unable to provide consent for some reason other than being unconscious.
- The accused has induced the complainant to provide consent by abusing a position of power, trust, or authority.
- The complainant expresses lack of consent using words or some other conduct.
- The complainant revokes their consent. Consent may be revoked at any time for any reason.
It is important to consider all applicable legislation when developing a consent defence to a sexual assault charge. Since the accused will be admitting to engaging in sexual activity with the complainant, if the defence of consent fails, the accused will almost certainly be convicted. Having experienced legal counsel assist in preparing a consent defence is always advisable.
3) Honest but Mistaken Belief in Consent Defence
Similar to the defence of consent, the defence of mistaken belief in consent argues that the accused did engage in sexual activity but were under the mistaken belief that the complainant provided their consent. In many cases, an accused will first argue the defence of consent, and then indicate that should that defence fail, and the court be of the opinion that the complainant was not consenting, then the accused had a mistaken belief in consent.
To successfully launch a mistaken belief in consent defence, the accused must present evidence to the court showing why they honestly believed the complainant was consenting to the sexual activity. The accused must point to specific words or actions of the complainant that led them to believe there was consent. The accused’s mistaken belief must have an air of reality to it. For the defence to be successful, the accused must provide evidence of affirmative consent. Arguing that the complainant did not say no, or try to push the accused away will not be enough.
The court will then consider whether a reasonable person in the accused’s position, with the same information as the accused, would have had a mistaken belief in the complainant’s consent. If the court is convinced that the belief was honest and reasonable in the circumstances, they will acquit the accused.
As a result of the complex rules surrounding sexual assault defences and the rules of evidence in sexual assault cases, it is advisable to seek the advice of experienced counsel if you have been charged with sexual assault. This is especially true where the accused intends to go to trial.
Donich Law has experience defending a wide array of sexual assault cases in jurisdictions throughout Ontario. We have experience with historical sexual assaults, sexual assaults in the workplace, minor sexual assaults and very serious complex sexual assault cases with multiple victims. We regularly obtain favourable results for our clients and pride ourselves on delivering quality services.
