What you should do if you have been charged with sexual assault

What you should do if you have been charged with sexual assault

Take the right steps when facing a sexual assault charge

When you are charged with sexual assault it may seem as if the entire world is against you. Because some assume that the accused is guilty until proven innocent, the stigma associated with a sexual assault allegation can destroy families, ruin livelihoods and leave reputations in tatters. In a court of law, you are innocent until proven guilty and the Crown must prove every essential element of the offence beyond a reasonable doubt. This is the highest standard of proof in our court’s system. 

If you have been falsely accused of sexual assault, there might be an overwhelming urge to do whatever you can to clear your name. Unfortunately, sexual assault cases can, at times, be more complex than murder cases. You need to be very patient because this is not a quick process. Generally speaking, a sexual case from charge to trial can take between one and three years. They tend to be longer trials. The Crown prosecutor is not going to get your file, examine the allegations and decide whether to proceed the following week. That’s not how it works. 

It is important to remember that all is not lost when you are facing a sexual assault allegation. Just because you are charged does not mean you have been convicted. Your version of the events is going to be heard by a judge, an impartial decision-maker.

We’re here to listen to your side of the events and our job is to provide you with the best defence to clear your name.

Defining sexual assault

The Criminal Code defines sexual assault as any touching of another person without their consent where the touching is of a sexual nature, or where the sexual integrity of the alleged victim is violated. It can include unwanted kissing or groping over the clothes, consensual sex with someone too young to consent, sexual activity with someone who is asleep or unconscious, sexual activity with someone who is unwilling, as well as disciplining a child by striking them below the waist.

Those convicted of sexual assault can face life imprisonment, inclusion in the National Sex Offender Registry, the surrender of a DNA sample to the National DNA databank and a ban on possessing weapons, including firearms.

Sexual assault crimes have received increasing attention in the past decade with movements such as #timesup and #metoo bringing a growing number of allegations to the public eye. Given what’s going on in the world, even so much as a simple allegation with no other evidence can be enough to have someone charged.

But remember, police do not have the final say in what happens with the case. They do not decide guilt or innocence. They are there only to lay charges and collect evidence. The Crown prosecutor takes over and analyzes the case for what is called a reasonable likelihood of conviction.

Being charged with any offence can be traumatizing, especially one as serious as sexual assault. During such a stressful situation it can be natural to want to tell your side of the story, believing you can immediately clear your name and avoid prosecution. That is a mistake. Even though you may be completely innocent and did nothing wrong, a statement to the police will never help you. Again, police are not the arbiters and you could unintentionally say something in the belief that you are helping your case when in fact you are incriminating yourself. Don’t do yourself a disservice by giving police a statement. That’s more evidence for them. We have never had a client who was able to talk themselves out of an offence. 

Call us first. 403.233.0443

The next steps

After you have been charged you should go about your life and live as normally as possible.

If you have text messages that directly relate to the offence, take screenshots and give them to your lawyer immediately. These messages can be vital to your defence. However, these messages cannot be used until a s.278 application is granted. You cannot simply bring such evidence on the day of trial and present it to the court. 

Abide by your release conditions to the letter and do not, under any circumstances, contact the complainant. Don’t have any family members try to contact the alleged victim. Cut off all communication with him or her.

Do not answer calls from the complainant. Do not respond to text messages. Do not have anyone else respond. Do not go on social media and post things to let them know you got the message. If the complainant has contacted you, tell your lawyer.

Credibility and the presumption of innocence

In he said/she said scenarios the Crown must prove beyond a reasonable doubt – which is the highest standard of proof in Canada – that the alleged event occurred and that it was intended to be a sexual assault.

The presumption of innocence is paramount in our legal system and is a “fundamental legal right under our constitution,” according to Justice Anne Malloy in R. v. Nyznik.

“The presumption of innocence, and along with it the standard of proof beyond a reasonable doubt, are important safeguards to ensure that no innocent person is convicted of an offence and deprived of his liberty,” Malloy wrote. “Without these protections, there would be a serious risk of wrongful convictions – an outcome that cannot be accepted in a free and democratic society … even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances, you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.”

The issue of credibility is important and laid out it in R. v W.(D.),more commonly known to the courts as W.D. It follows that if a judge believes you and doesn’t believe the complainant then you are found not guilty. Also, if the judge does not know who to believe you are also found not guilty. Finally, if on all the evidence before the court there is still doubt as to what occurred you are also not guilty. The only way to be found guilty of sexual assault is if the Crown proves beyond a reasonable doubt both the mens rea (that you intended to commit a sexual assault) and that the sexual assault actual occurred. If it is established that the complainant is of legal age, and consented to the sexual acts, you will be found not guilty.  

What to expect at trial

There are effectively two defences. Was consent given or did the offence occur under a mistaken belief of consent? 

In questioning the complainant, legal counsel must abide by s.276 the Criminal Code – often referred to as “rape shield laws” – which bans the admission of prior sexual history without a judge’s ruling. Bringing s.276 and s.278 applications are another reason why sexual assault cases can be exceptionally complex.

In a trial defence counsel will be looking to question the credibility of the complainant to see how consistent her memory of the events is to her statement to police. Then the client’s version of events is put to the complainant in an attempt to establish whether consent was given.

As a defendant, you may then be required to take the stand to tell your version of the incident. On cross-examination by the Crown, you should be open and honest. If you are unsure of the answer to one of the Crown’s questions, simply say you don’t know. Don’t try to make things up on the stand as you go. It could damage your credibility.


Contact Dunn and Associates Criminal Defence Lawyers

Sexual assault is a serious offence and it is to your advantage to have experienced, knowledgeable counsel working in your defence. We’re here for you and happy to provide a free consultation and guide you through the legal process.