Defending Sexual Assault allegations in Canada

Farid Zamani
Farid Zamani
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Defending sexual assault allegations involves understanding the essential components of the charge to determine whether or not the allegations can be supported by evidence in court. The Crown must prove each of the elements of sexual assault, as set out in the Criminal Code of Canada. This is called making a prima facie case. For an accused to be convicted, the judge or jury must be convinced beyond a reasonable doubt of each of the essential elements of the offence. To secure an acquittal, the accused can negate one or more of the elements of the offence. Each defence must pass the air of reality test.

Prior to delving into the elements of the offence, it is vital to understand the following components of a sexual assault charge and the type of evidence that must be presented in court. Proof of both the actus reus and the mens rea must be present to secure a conviction.

Actus Reus:

This refers to the “guilty act” element of a crime. This can be either an act or a failure to act when a duty to act is implied in the law. The acts must be physically voluntary; this means that a touch must occur, or a word must be spoken for the offence to be proven. The acts cannot be accidental or unconscious.

Mens Rea:

This refers to the mental element of the crime. The mens rea component of a charge pertains to what the accused was thinking with respect to the crime. Typically, this is viewed from a subjective point of view, meaning that the mens rea is subjective to the accused unless the Criminal Code specifies an objective standard.

Sexual Assault is not explicitly defined in the Criminal Code. Over the course of many years, numerous decisions in the Canadian courts imported the sexual element into the actus reus of the offence. Proving this offence requires specific evidence that an accused person committed an identified assault of a sexual nature such that the sexual integrity of the victim was violated. The majority of sexual assault charges rely on the regular assault provisions of the Criminal Code, which set out the following:

  1. Touching that constitutes an assault within the definition of section 265(1)(a);
  2. The touching occurred in sexual circumstances;
  3. There was a lack of consent to the touch from the victim.

The accused must apply some force to the victim for this section to qualify. Most people do not realize that the touch may be direct or indirect. In other words, you can still be charged for sexually assaulting someone if you use another person to do the touching, or ejaculating onto the victim or even ejaculating close to the victim. The touch also does not have to be a sexual part of the body, nor does the touch have to in sexual in anyway. It is often challenging to describe sexual assault in Canada; however, the Supreme of Canada noted some factors to consider whether a reasonable person would find a sexual element to the assault:

  1. Which part of the body was touched;
  2. The nature of the contact;
  3. The situation in which the contact occurred;
  4. Any words or gestures that accompanied the contact;
  5. The intent or purpose of the accused, including sexual gratification;
  6. Any other circumstances surrounding the conduct.

It is essential to understand, as touched upon earlier that a sexual assault can occur without a sexual act. For example, in a regular assault, if the victim ends up being partly nude can sometimes be enough to be convicted of sexual assault. A crucial element in establishing the actus reus is a lack of consent on the part of the victim. It is also critical to understand that physical touching is not required under section 261(1)(a) of the Criminal Code. If an accused threatens or attempts to touch, either sexually or non-sexually.

There are two elements that the Crown prosecutor must prove to demonstrate mens rea in sexual assault:

  1. That the accused intentionally acted;
  2. That the accused was aware of, or willfully blind or reckless to, the victim’s lack of consent to the sexual act.

There is no requirement that the intent to touch include any element of sexual intent or motive or an improper or ulterior purpose. In other words, the Crown prosecutor needs only to prove that the accused intended to touch the victim to satisfy the requirements of the mens rea. Even if there is evidence that the accused did not have a sexually motivated purpose, the requirement can still be fulfilled. An accidental touch will not satisfy the mens rea requirements.

Although not in the Criminal Code, there is a defence available for an accused who mistakenly believed that the complainant consented to be touched in a sexual manner.  The accused must demonstrate, in most cases, through his or her own testimony, that he or she honestly believed that the complainant communicated consent to engage in sexual activity. In most circumstances, an accused can be convicted if they are aware that the complainant did not expressly consent to whatever sexual act is in question.

If an accused is convicted of sexual assault, the next step in the process is sentencing. Sexual assault is a hybrid offence; there is no minimum sentence. However, the maximum an accused can be sentenced to in prison is 10 years. This changes if the complainant is under 16 years of age. If the complainant is under the age of 16, there is a mandatory minimum of one year in prison and a maximum sentence of 16 years in prison. It is also important to note that a conviction requires an accused to register with the Sexual Offender Information Registration Act (SOIRA).

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