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Sexual Assault

The Charge

Sexual assault is an assault which is committed in circumstances of a sexual nature such that the act violates the sexual integrity of the complainant. Under s. 271 of the Criminal Code, the Crown may proceed by indictment, in which case the maximum sentence is 10 years in jail, unless the complainant is under the age of 16, in which case the maximum jail sentence is 14 years. Alternatively, the Crown may proceed summarily, in which case the maximum sentence is two years jail, less a day. Generally, when the offence involves intercourse, the Crown will proceed by indictment.

Section 273.1 of the Criminal Code defines “consent” as requiring the “voluntary agreement of the complainant to engage in the sexual activity in question.” Section 273.1(2) goes on to set out a number of circumstances where the apparent agreement of the complainant cannot amount to consent. Effectively, there cannot be consent where:

  • Agreement is expressive through the words or conduct of someone other than the complainant;
  • The complainant is “incapable” of giving consent (i.e. through intoxication or unconsciousness);
  • The accused obtained consent through abusing a position of trust, power or authority; or
  • Where the complainant has expressed, by words or conduct, a lack of agreement to consent to, or to continue to consent to, the sexual activity.

In essence, where sexual assault is alleged, the accused person must show, as set out under s. 273.2 of the Criminal Code that they “reasonably believed that the complainant was consenting.” There can be no “reasonable belief” that the complainant consented where the accused’s belief arose out of:

  • Self-induced intoxication; or
  • Willful blindness or recklessness; or
  • Where the accused did not take reasonable steps to ascertain that the complainant was consenting.

The Investigation

We know that there are two sides to every story. We also know that the rules of evidence and court procedure relating to sexual assault allegations can be complex. Our experience in defending sex assault charges allows us to analyze your version of events along with the complainant’s allegations and the Crown’s case in general.

Every case is unique, but typically, police may not receive a sexual assault complaint for hours, days, weeks or, sometimes, years after the alleged incident. In these situations, police will contact the suspect by phone, or by attending at their home or workplace in order to obtain a statement or to make an arrest. As experienced lawyers, this is where we can help clients understand that the Charter of Rights and Freedoms guarantees that people need not speak to police because they have the right to remain silent.  In situations where we are contacted before police obtain a statement, we can be of significant assistance. We will make enquiries to determine the nature of the complaint. Because of the laws involving solicitor/client privilege, we can act as a “buffer” between our client and police. There is nothing that we, as lawyers, can say on our client’s behalf that can be used against our client. This enables us, if appropriate to do so, to tell the police your side of the story without any potential harm. We will strive to persuade police to not recommend charges, or in the event that charges are laid, we will strive to obtain police agreement to not arrest our client. Rather, we will endeavor to arrange that our client appears in court to have the arrest warrant “deemed executed” without the need for our client to be taken into custody. We will always argue that our client can be released from custody on the most liberal bail conditions that are appropriate.

Recent Successes

R. vs. J.F. - North Vancouver Provincial Court

Charges: Possession for the purpose of Trafficking; Obstruct Police.
Issue: Whether the cocaine found by police was intended for sale or for personal use, and whether it was in the public interest to prosecute.
Result: Mr. Mines was able to provide information to Crown counsel which resulted in Crown agreeing to drop all charges upon our client successfully completing the Alternative Measures Program.

R. vs. A.O. - Vancouver Provincial Court

Charge: Possession of a loaded restricted handgun, without a permit.
Issue: Whether the Crown could prove that our client did anything more than briefly touch the gun while he a passenger in a vehicle.
Result: Mr. Mines was able to persuade the trial judge that our client's actions were minimal and that his youthful age and lack of record allowed him to be granted  a conditional discharge. No conviction. No jail.

R. vs. S.S. - Nelson Provincial Court

Charges: Possession for the Purpose of Trafficking (MDMA, Ketamine, Cocaine).
Issue: Given the nature of the search and seizure, the rehabilitative steps we were able to guide our client through, and given the recent changes to the mandatory minimum jail sentence for this offence, whether our client was eligible for a non-custodial sentence.
Result: Notwithstanding the large amount of drugs involved (approximately 2 kgs), Mr. Johnson was able to persuade the court to impose a conditional sentence of two years, less one day. No jail.

R. vs. D.M. - Vancouver Provincial Court

Charges: Assault.
Issue: Given the provocation that preceded the incident, what  the appropriate sentence would be.
Result: Mr. Gauthier was able to persuade the court to sentence our client to a period of probation of 12 months. No jail.

R. vs. B.K. - New Westminster Provincial Court

Charge: Indecent Act.
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest to proceed with the prosecution.
Result: Mr. Mines was able to persuade Crown counsel to enter a stay of proceedings upon our client completing an extensive course of counselling. No criminal record.

R. vs. K.L. - Vancouver Provincial Court

Charges: Theft Over $5000 (from employer).
Issue: Given the rehabilitative steps we were able to guide our client through, whether she would be sentenced to jail.
Result: After steering our client through counselling and arranging her repayment of the misappropriated funds, Mr. Mines was able to persuade Crown counsel to not seek a. jail sentence. After hearing Mr. Mines' submissions on our client's behalf, the court granted a suspended sentence and placed our client on probation for 18 months. No jail.

R. vs. A.A. - North Vancouver Provincial Court

Charges: Sexual Assault; Uttering threats; assault, Breach of Release Order.
Issue: Whether there was a substantial likelihood of conviction.
Result: Mr. Mines was able to persuade Crown counsel that there was no realistic chance of conviction on the sex assault charge and Crown proceeded only on the assault charge to which our client pleaded guilty. After hearing Mr. Mines' submissions, the court granted our client a conditional discharge and Crown entered stays of proceeding on the remaining 3 counts. No jail, no criminal conviction.

R. vs. A.S. - Vancouver Provincial Court

Charge: Driving while prohibited.
Issue: Whether it was in the public interest to proceed with this charge which carries a mandatory one year driving prohibition upon conviction.
Result: Mr. Mines was able to provide Crown counsel with information that concluded our client was not at all responsible for the motor vehicle accident and persuaded Crown to proceed on the lesser offence of driving without aa valid license. Our client was sentenced to a fine and a 3 month driving prohibition.

R. vs. L.M. - Vancouver Provincial Court

Charges: Mischief Over $5000; Assault Police Officer.
Issue: Whether the sentence ought to emphasize punishment or rehabilitation in this matter where our client was alleged to have caused over $100,000 in damage to his building.
Result: Mr. Gauthier was able to provide Crown counsel with materials confirming the rehabilitative steps our client had taken for his mental health. The cRown stayed the assault police officer charge and, after hearing Mr. Gauthier's submissions, the Court granted our client a conditional discharge and placed him on probation. No jail.

R. vs. D.R. - Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Whether it was in the public interest to proceed with the prosecution.
Result: Mr. Mines was able to persuade Crown counsel to enter a stay of proceedings on the assault charge. Our client entered into a 12 month Peace Bond. No criminal record.

R. vs. B.Z. - Port Coquitlam Provincial Court

Charge: Assault (domestic).
Issue: Given the rehabilitative steps we were able to direct our client through, whether it was in the public interest to proceed with this prosecution.
Result: Mr. Johnson was able to provide Crown counsel with information that allowed him to persuade Crown to enter a stay of proceedings. No criminal record.

R. vs. M.C. - Vancouver Provincial Court

Charges: Driving While Prohibited.
Issue: Whether it was in the public interest for Crown to proceed with the prosecution of this offence which carries a 12 month mandatory minimum driving prohibition.
Result: Mr. Johnson was able to persuade Crown counsel to proceed on the lesser offence of driving without a valid licence. Our client received a $500 fine and a 30 day driving prohibition.

The Defence

No Sexual Contact

The Crown’s first hurdle in a sexual assault case is proving that there was any contact whatsoever between the complainant and the accused. The location, date, and time of the alleged incident is certainly important because it may be that the accused can establish that they were, in fact, in another place at the time of the allegation. There are certain rules and requirements that govern such alibi defences, and we have the necessary experience and skill to advance such defences where appropriate.

Consent

Consent is the central issue in the majority of sexual assault charges. Sections 265(3) and 273.1 of the Criminal Code set out that the Crown must prove, beyond a reasonable doubt, that the accused failed to obtain the voluntary agreement of the complainant to engage in the sexual activity in question.

The defence is, of course, permitted to refer to relevant evidence that tends to suggest the accused did, in fact, obtain the complainant’s voluntary agreement to engage in the sexual activity. Amendments to the Criminal Code and recent case law have limited what the courts will allow as “relevant” evidence tending to suggest an agreement was obtained. For example, there can be no agreement obtained where the complainant was incapacitated, tricked, or withdrew their agreement.

Our experience as trial lawyers allows us to assess cases before they get to trial, and in appropriate cases, we are able to persuade Crown to not proceed to trial or to proceed on a lesser charge. We will strive to get full particulars (police reports and witness statements) from Crown counsel before you put your side of the story on the record. Should your matter require being resolved at trial, we will fully prepare you and explain our strategies to you. We will diligently defend you in the courtroom.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.