Sexual Assault Charges

We recently represented a man who was charged with sexual assault charges. In this case, our client was accused of touching his ex-wife without consent on her bum and her breasts. In this case, it was alleged that our client hugged his wife against her will in front of their child. There was doorbell footage that was seized and a part of the disclosure. The footage was a bit grainy. It showed some contact between the accused and his ex-wife. The legal issue was whether the prosecutor could prove she did not give implied consent beyond a reasonable doubt. In these sexual assault cases, the trier of fact must assess the credibility and reliability of both the complainant and the accused (presuming the accused testifies).

A credibility analysis focuses on a witness’s ability to be honest or an assessment of his/her/they’s veracity. The reliability analysis requires the trier of fact to assess the accuracy of a witness’s sexual assault evidence. When a judge is assessing the accuracy of a witness’s evidence they will consider the ability of the witness to make observations, their ability to recall and their ability to recount the events at issue. A judge can find a witness credible but unreliable due to an honest mistake. However, a discredible witness cannot be reliable.

Sexual Assault Charge Withdrawn

In this case, the complainant’s credibility was at issue based on what the doorbell camera footage showed. It is important to note that consent, especially of a sexual nature, is only assessed in the mind of the complainant on a subjective basis.

The Criminal Code defines consent in section 273.1(1) as the voluntary agreement to engage in the sexual activity in question. The law focuses on what the person was thinking and feeling at the time of the sexual activity. Sexual touching is lawful if the person communicates consent through words or actions. Silence or passivity does not amount to consent. The Supreme Court has said that only Yes means Yes.

In some sexual assault cases, an accused may raise an honest but mistaken belief in communicated consent. This defence cannot be raised and will not be successful if the accused person states they believed there was implied consent if:

• that belief is based on their own intoxication; or
• they were reckless about whether the person was consenting to sexual contact or;
• they chose to ignore things that would tell them there was a lack of consent for a sexual act; or
• they didn’t take proper steps to check if there was consent for a sexual act.

Honest but mistaken belief in communicated consent was not at issue in this case. In most sexual offences where the complainant and the accused have opposed versions of events, consent is the typical issue that will be litigated. In this case, our firm successfully negotiated with the prosecutor convincing them to withdraw the sexual assault charge. This means the accused person is no longer facing a criminal record or a summary conviction, he is no longer facing a jail sentence and finally, he is no longer facing any ancillary order such as a SOIRA order.

If you have been charged with sexual assault in Canada, contact the criminal offence lawyers at Wyman & Williamson today.