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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. C.Y. – Richmond Provincial Court

Charges: Assault with a weapon ( reduced to Peace Bond).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to allow our client to resolve this matter with a s. 810 Recognizance (Peace Bond) for a period of 12 months. Stay of proceedings on the criminal charge. No criminal record.

R. vs. F.K. – Vancouver Provincial Court

Charges: Theft and Fraud Over $5000 (from employer).
Issue: Whether the pre-charge delay of 3.5 years would reduce the sentence in this $215,000 employee fraud case.
Result: Mr. Mines was able to persuade the trial judge and Crown counsel that there was merit to our application for a judicial stay of proceedings based on our client's inability to properly defend the charges due to a delay of about 4 years in getting the charges approved. Notwithstanding this breach of trust, Mr. Mines was able to negotiate a plea arrangement in which our client received a 2 year conditional sentence order with a 10 pm curfew for 12 months. No monies were ordered to be repaid. No jail.

R. vs. M.P. – Abbotsford Police Investigation

Charges: Uttering Threats.
Issue: Whether it was in the public interest to proceed with a criminal prosucution.
Result: Mr. Gauthier was able to provide information to Crown and to ultimately persuade Crown counsel to not approve any charge in this case. No charge approves. No criminal record.

R. vs. J.H. – Abbotsford Provincial Court

Charge: Failing to stop at an accident resulting in bodily harm.
Issue: Given the circumstances of the offence, our client's background and his extreme remorse, whether a jail sentence was warranted.
Result: Mr. Gauthier was ble to direct our client through a course of psychological counselling and was able to persuade Crown counsel to agree to a non-custodial sentence. After hearing Mr. Gauthier's submissions, the Court sentenced our client to a 12 month conditional sentence. No jail.

R. vs. Q.G. – Vancouver Provincial Court

Charges: Theft Over $5000 (from employer).
Issue: Whether Crown counsel had sufficient evidence to meet the charge approval standard.
Result: Mr. Mines was able to persuade Crown counsel that important evidence would be missing from a cenrtal witness and to not approve any charges. No criminal record.

R. vs. K.H. – Abbotsford Provincial Court

Charges: Breaking and entering a dwelling house and committing an indictable offence, wearing a mask for the purpose of committing an indictable offence, breach of release order.
Issue: Whether it would be consistent with the principles of sentencing for our client to serve his sentence in the community.
Result: Mr. Johnston provided Crown counsel with information which, along with our client's rehabilitative progress and good compliance with strict bail conditions, persuaded the Crown to seek a jail sentence of under two years for his role in a violent "home invasion". After hearing Mr. Johnston's submissions, the court agreed it would not be inconsistent with the principles of sentencing for our client to serve his sentence in the community instead of in custody. This was a significant result for our client as home invasion convictions typically result in lengthy jail sentences served in federal prison. No further time in custody.

R. vs. G.T. – Surrey Provincial Court

Charge: Assault.
Issue: Given the rehabilitative steps we were able to guide our client through, whether there was a public interest in proceeding with a criminal prosecution.
Result: Mr. Johnston provided Crown counsel with information which, along with our client’s progress with counselling, persuaded the Crown to gradually relax our client’s bail conditions and ultimately direct a stay of proceedings on the charge. No further prosecution. No criminal record.

R. vs. B.K. – Vancouver Provincial Court

Charges: Impaired Driving.
Issue: Whether Crown counsel could prove the impaired driving offence in light of evidence brought forward by Mr. Gauthier which suggested that our client did not voluntarily consume the drug that may have contributed to the the manner of his driving and the ensuing accident.
Result: Mr. Gauthier was able to persuade Crown counsel to proceed on the lesser charge of dangerous operation and, rather than being convicted of impaired driving, our client was granted a conditional discharge. No criminal conviction.

R. vs. D.H.P. – Vancouver Provincial Court

Charges: Assault causing bodily harm; mischief to property under $5000.
Issue: Whether there was a substantial likelihood of a conviction on the assault causing bodily harm charge.
Result: Mr. Mines was able to persuade Crown counsel to enter a stay of proceedings on the assault causing bodily harm charge. After hearing Mr. Mines' submissions, the court granted our client a conditional discharge and ordered restitution in relation to the smart phone that was damaged. No criminal conviction.

R. vs. W.J.M. – Port Coquitlam Provincial Court

Charge: Assault.
Issue: Given the rehabilitative steps we were able to guide our client through, whether there was a public interest in proceeding with a criminal prosecution.
Result: Upon presenting Crown counsel with a psychological report regarding our client's low risk to commit a similar act, Mr. Gauthier was able to persuade Crown to not approve any criminal charges whatsoever. No prosecution. No criminal record.

R. vs. J.A. – Vancouver Provincial Court (DCC)

Charges: Assault; Assault Peace Officer (x2).
Issue: Given the circumstances of our client being severely intoxicated and acting out f character, whether a criminal conviction was appropriate.
Result: Mr. Mines was able to provide Crown counsel with our client's background information resulting in a joint recommendation to the Court for a conditional discharge. No criminal conviction.

R. vs. E.L. – Vancouver Provincial Court

Charges: Aggravated Assault; Breach of Probation.
Issue: Given the context of the offences and our client's rehabilitative efforts, whether a jail sentence was appropriate.>br> Result: Mr. Johnston informed Crown counsel of the significant rehabilitative progress our client had made since the offence dates and persuaded Crown to not pursue the 16 month  jail sentence they had been seeking. Crown agreed to proceed on the less serious charge of assault causing bodily harm and to stay the remaining charges. After hearing Mr. Johnston's submissions, the court granted our client a one year conditional sentence sentence and two years of probation. This was a particularly positive outcome for our client, who had a prior conviction for a similar offence. No jail.

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.