Sexual assault is one of the most serious offences in the Criminal Code. A mere allegation of sexual assault can ruin your reputation. A sexual assault conviction carries serious penalties, including substantial jail time and mandatory registration as a sexual offender.
Ottawa sexual assault lawyer Brett McGarry has a track-record of successfully defending serious sexual offence charges in Ontario. 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.
Sexual assault cases
Sexual assault cases are often based on allegations arising from domestic, family law, or intra-personal conflicts (e.g. dating, office, etc.), or can arise from misidentification. The allegations are sometimes made many years after the alleged event. Often emotions are high and there is a motive to fabricate. In many cases, the only proof is the word of the complainant.
“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.
Click here for the precise definition of “assault” and consent” in the Criminal Code.
A thorough defence against harsh penalties
Sexual assault cases typically benefit from extensive pretrial investigation and preparation. These cases require the ability to use secondary sources of material, including: family law documents, witness interviews, medical records, psychiatric records, and related documentation. It is also necessary to review past communications, including: e-mails, voicemails, text messages, online chats, and cell-phone records. The defence may retain a private investigator, computer expert, or medical expert to assist in the defence. These sources are used to construct successful cross-examinations which challenge the reliability and credibility of the complainant.
A preliminary hearing often forms the building blocks for an acquittal at trial later. Using 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 with a third-party records application.
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, a significant amount of time will be spent preparing the client 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 of the following obstacles to his or her defence:
• 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 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 records to defend himself; for example, medical, psychiatric, or counselling records. (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 your disposal to prove that you are not guilty is a cross-examination of the complainant based on meticulous preparation by a good criminal defence lawyer. Brett McGarry is well versed in the skills of cross-examination, as well as the legal and evidentiary technicalities in sexual assault cases, which are necessary to fully defend a client.
The strength to fight for you
Any criminal sexual allegation cannot be taken lightly. From the moment you are suspected of being involved in a sexual assault or sex crime, you need determined defence counsel that can inform and advocate for you. Brett McGarry is well equipped to take on a wide range of sexual offence cases, including:
- Sexual assault
- Rape
- Aggravated sexual assault
- Sexual assault with a weapon
- Forcible confinement
- Sexual interference with a minor
- Invitation to sexual touching
- Historical sexual assault
- Indecent assault
- Sexual exploitation and Internet luring
- Possession of child pornography
- Related sex offences
Click here to read an analysis of Brett McGarry’s successful defence strategy in “Ben’s Case.” Brett McGarry’s client was acquitted of extremely serious sexual assault charges, including rape and forcible confinement, after Superior Court trial.
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. The initial consultation is free.