Sexual assault allegations are highly distressing for both the victim and the accused. Victims are loath to relive the event when offering evidence, and the alleged assailants face the possibility of social exclusion, career loss, and ongoing stigmatization. To add to this, the sexual assault laws in Canada are complex, while the burden on the Crown to prove the charges and on lawyers to defend their clients is both onerous and involved.
Alcohol and drugs add a layer of complexity to sexual assault charges that impact both the Crown and the accused. Understanding the role that intoxication plays when sexual assault cases are brought before a court is crucial to mounting a good defence. In the paragraphs below, we will review the requirements to prove this crime in court and what you should do if you face false sexual assault allegations.
Sexual Assault in Canadian Law
Sexual assault is dealt with in Section 271 of the Criminal Code of Canada (the “Code”). There are three categories of sexual assault offences in The Code, to which different penalties apply:
- Sexual assault
- Sexual assault that involves any of these:
- a weapon
- threats to a third party (such as a child) if the person does not comply
- harm to the victim
- more than one assailant
- Aggravated sexual assault, which involves serious or life-threatening injuries.
In Canada, sexual activity is only legal if both parties consent to it. The Code defines consent as “the voluntary agreement of the complainant to engage in the sexual activity in question.” Critically, it also details what negates an assertion that a person consented to a sexual act:
- They are younger than the legal age of consent.
- Force or the threat of force is used to gain compliance.
- The accused used fraud to gain compliance.
- Someone other than the complainant gave the consent.
- The complainant is incapable of consent for any reason, including being asleep, unconscious, or too intoxicated to consent.
- The accused is in a position of trust, power or authority over the complainant and abuses that position to gain their compliance.
- The complainant expresses a lack of consent using either words or behaviours.
- The complainant withdraws their consent (as indicated in words or by actions) after initially agreeing to it. This withdrawal has to happen during the activity and can not happen afterwards.
The Influence of Alcohol on Sexual Assault Charges
If the complainant ingested alcohol or drugs prior to the alleged assault, the Crown can argue that they were incapable of consenting to the sexual activity. Many sexual assault cases come down to this important factor.
The Crown may offer toxicology evidence to show that the complainant was intoxicated. In the absence of such evidence, they may rely on testimony about the complainant’s behaviours, including significantly slurred speech, non-responsiveness, impaired balance, loss of bladder or bowel control, and memory loss.
Objective evidence of impairment, such as surveillance video, can be difficult to obtain, so many sexual assault charges come down to the testimony of the complainant alone, and the case becomes a he-said-she-said (or a he-said-he-said, as the case may be). If the case hinges on intoxication, the criminal defence lawyer will need to show that the complainant was not impaired or was not so impaired that they were unable to give consent.
A Note About the Intoxication of the Accused
You may have heard about a 2022 Supreme Court of Canada (the “SCC”) case involving the use of the accused’s self-induced extreme intoxication as a legal defence. The SCC ruled that a section of the Code that disallowed this defence violated certain constitutional rights and was therefore invalid. The effect of this ruling was to open the door to using extreme intoxication as a defence.
Although this briefly offered hope to people who had been accused of sexual assault, it is important to note that this section of the Code has now been amended, and this defence is no longer available.
What You Should Do If You Are Accused of Sexual Assault
Being accused of any crime is extremely disorienting. If this happens to you, do not panic. Follow these steps:
- Call a lawyer and remain silent
You will be anxious to claim innocence and offer your side of the story. The police will attempt to convince you that this is in your best interest and will use various methods to extract a confession from you. Resist the urge to defend yourself: insist on your right to hire and instruct a lawyer and say nothing other than that. As knowledgeable as you may be about the law and the criminal justice system, it is surprisingly easy to make a mistake and say something that will be used against you later.
- Record everything about the situation as soon as you can.
Memories fade over time, and the more access you have to details about the event, the better off you will be. Record a voice memo or write down everything you can recall and add to it as you remember other details. Take screenshots of all your digital interactions with the complainant and anything else that happened around and during the time of the alleged sexual assault. Make a list of anyone who can speak to your whereabouts and activities at the time of the alleged assault.
- Follow your lawyer’s instructions.
Listen carefully to what your lawyer is telling you and ask for clarification if there’s something you don’t understand. Do what your lawyer tells you to do and attend carefully to anything they tell you not to do.
How Will a Lawyer Defend Me?
Your sexual assault lawyer will take action immediately to build your defence. They may attempt to have the charges dropped by pointing out inconsistencies in the evidence or a lack of sufficient evidence. They may also negotiate with the Crown to have the charges reduced to a lesser offence.
If the case goes to trial, remember that the Crown must prove your culpability beyond a reasonable doubt. Your lawyer will present arguments and evidence to create sufficient doubt. Three common areas where doubt can be brought to light are:
- Your identity: the Crown must be able to prove that you are the person who committed the alleged assault.
- The crime itself: the event may not constitute sexual assault as defined in the Code or may not have occurred at all.
- The complaint’s ability to consent: when alcohol or drugs are involved, the Crown may attempt to show that the complainant was too impaired to consent to sexual activity. Your lawyer will attempt to show that, even if they were impaired, they were not so intoxicated as to be unable to consent.
The laws related to sexual assault in Canada read as straightforward, but interpreting and applying them are not simple. When drugs or alcohol are involved, they are even more complex and challenging to deal with in court. If you’re accused of a sexual assault involving intoxication and the issue of consent, it is critical that you have a highly skilled and knowledgeable lawyer to counsel you and deal with your interactions with the criminal justice system. The criminal defence lawyers at Zamani Law are experts at defending people facing sexual assault allegations in Canada.
Remember the first rule of being accused of sexual assault: Call a lawyer. Zamani Law is ready to help you today. Contact us now for a free, no-obligation consultation.
- Criminal Code of Canada: Meaning of consent https://laws-lois.justice.gc.ca/eng/acts/c-46/page-36.html#docCont
- Government of Canada: Changes to section 33.1 of the Criminal Code on self-induced extreme intoxication: https://www.justice.gc.ca/eng/csj-sjc/pl/sei-ive/index.html
- CBC Online: Liberals introduce bill to eliminate self-induced extreme intoxication as a legal defence: https://www.cbc.ca/news/politics/self-induced-extreme-intoxication-defence-legislation-1.6492679