Sexual Assault Charges in Canada (Section 271 of the Criminal Code)

Sexual assault is one of the worst types of criminal offences to be charged with in Canada. Even first time offenders who are convicted of sexual assault are often sent to jail and required to register as sex offenders. Such a criminal record follows the accused for life. Many lose their jobs, find themselves unemployable, and banned from travelling to other countries such as the US in the future.The accused is then often sued civilly for hundreds of thousands or even millions of dollars and such judgments are preserved even if the accused declares bankruptcy.

The complainant/"victim" and the accused are not usually strangers

People tend to envision sexual assault as a rape occurring in a dark alleyway by a stranger, but very few cases confirm to this inaccurate stereotype. Sexual assault cases usually involve two parties that already know each other, such as:

1. Boyfriend/Girlfriend/or same sex relationships
2. Individuals who are dating, or who went on a date (often after meeting on the internet)
3. Married, common law, or long term former partners (domestic sexual assault)
4. Coworkers, bosses and employees, and other professional relationships
5. Non romantic partner family relationships (aunts, uncles, cousins, step parents, etc.). The charge may be sexual interference depending on the age of the complainant.
6. Individuals who connected at a party, nightclub, or other event (often alcohol related)

>Most sexual assault cases rely on nothing more than statement of the "victim" as evidence. Just someone saying they did not fully consent to the sexual activity is enough to support a conviction under s. 271 if their story is believed by the trial Judge. Convictions can occur absent any other evidence such as DNA, video/audio, third party witness statements, etc. As such, the primary goal of the lawyer is to discredit the complainant’s story in most cases.

How a criminal lawyer can discredit the testimony of a sexual assault complainant

Sexual assault complainants may lie to the Police for many reasons. It is important that a lawyer cross examine them to highlight potential motivations they may have to lie about what really happened.

Some of the most common reasons behind false sexual assault complaints are:

1. The allegation is made out of revenge
2. The complainant regrets or feels embarrassed about consenting afterwards (perhaps after sharing their story with friends or family)
3. The complainant is motivated by financial reasons such as a civil lawsuit
4. The complainant was pressured by a third party for cultural or religious reasons
5. The complaint is made to gain an advantage in a civil proceeding (often a family law case of custody, access, division of property, etc.)

The behaviour of the complainant after the alleged incident can be particularly helpful to the defence

If the complainant’s actions or words after the alleged sexual assault seem inconsistent with their police statement this can benefit the accused’s defence. This includes copies of text messages, voicemails, social media posts, emails, and other forms of written media. The after incident comments do not necessarily have to be as obviously contradicting as “I had a great time tonight”, virtually any positive or neutral communication is beneficial. It is a good idea to save all communications you have with people as they may be needed for your defence in the future.

In one very highly publicized Toronto 2016 case, the defendant's lawyer surprised the Crown and the complainants with extremely inconsistent preserved electronic communications resulting in a not guilty verdict. As a reaction to this acquittal, the Federal Government limited the surprise use of after incident behaviour as evidence. This diminishes the ability of those accused from fully defending themselves in court.

Given that the accused is facing the entire resources of the Government prosecuting them, along with a potential life ruining conviction based on one person pointing the finger at them and saying they did something wrong, their ability to employ all possible defences is extremely important. As mentioned above, there are many potential reasons for false allegations.

The complainant's sexual history or past history of consentual sex with the accused is largely prevented from coming into evidence because of existing "rape shield" laws

The Government has also limited the accused's ability to defend themselves in court by preventing their defence lawyer from introducing most evidence about prior consent and prior sex acts of the complainant. The theory behind this law is that a complainant's past is largely irrelevant, that this prevents victim blaming/shaming, and that it encourages more victims to come forward. 

Domestic Sexual Assault: A large number of sexual assault cases involve allegations made between spouses/partners in a relationship

Domestic classified sexual assaults are assigned to a specific courts teamed with special Domestic Violence Crown Attorneys. While there was a time when it was criminally legally impossible to rape an individual’s married partner, that law has been changed for quite some time now. Cases arising between spouses are usually either historical in nature, or arising after a 911 call following a heated argument/exchange.

False domestic allegations are often motivated by anger/revenge (perhaps for adultery or other wrongs) and trying to gain an advantage in the family court system. In the Toronto area, there are many couples who are separated but continue to live together in the same house for financial reasons. These types of relationships often get worse over time. This anger and resentment sometimes builds to the point that one party is motivated is make a false sexual assault claim in an attempt to harm the other.

Sugar Baby/Daddy and other paid companionship cases

We are currently noticing an increasing number of calls from individuals who have been charged with sexual assault after a "Sugar Baby" or some other form of paid companionship makes an allegation against them. Sometimes the complainant is upset over not being paid as expected and is motivated to file a police report. Given the very nature of a Sugar Daddy / Sugar Baby relationship, the accused Sugar Daddy is often an individual with substantial assets (house, investments, etc.) that could be legally redistributed to the Sugar Baby following a successful civil lawsuit.

Sugar Daddies are also often ripe for extortion because they are sometimes hiding this paid relationship from their spouse. If attempts to extort the individual do not work, a criminal complaint may be the next move used against them.

A criminal conviction can be used in civil court to award a large non-dischargeable financial judgment against the accused in favour of the complainant

If someone is criminally convicted, the court has declared them to be guilty beyond a reasonable doubt. In civil court the test is a balance of probabilities (50/50). A criminal court ruling is extremely beneficial in civil court because it operates on a much lower standard of proof. A lawsuit will thus often follow a conviction particularly if the defendant has known assets to pursue. The complainant now has a court criminal judgment, funded by the taxpayers, saying the sexual assault took place which far exceeds the standard of what they need to prove in civil court.

It should also be noted that sexual assault civil court judgments tend to be very high. In the Ontario case of John Doe v. O'Dell the complainant was awarded over $1 million dollars. While not every case will result in a million dollar judgment, there are numerous court cases throughout Canada where awards are well into the hundreds of thousands of dollars. In Blackwater v. Plint, the Supreme Court of Canada upheld a judgment for $125,000 of compensation to a sexual assault victim for pain and suffering alone. This does not include compensation for loss of income which is often much higher and the reason why civil judgments can be in the millions of dollars.

Even Bankruptcy will not extinguish a sexual assault judgment

Even if the accused declares bankruptcy following a civil court ruling, the judgement against them is preserved. Canadian law shields sexual assault lawsuit judgements from bankruptcy. This is codified in Section 178 of the Bankruptcy and Insolvency Act, which states:

178 (1) An order of discharge does not release the bankrupt from

• (a.1) any award of damages by a court in civil proceedings in respect of
• (i) bodily harm intentionally inflicted, or sexual assault

Those with assets may risk losing everything they have ever worked for. Those without may find themselves indebted to the complainant for life.

The potential consequences for someone accused of sexual assault are incredibly severe especially considering the only evidence against them is often someone claiming they did something wrong. Accused individuals are usually shocked at how easily everything they've worked for can be destroyed. Like many first time offenders, they are largely oblivious to the fact that this happens in Canada until it happens to them.

Whether you have been contacted by the Police and asked to attend the Police station, or are currently charged it is extremely important that you exercise your right to remain silent and contact a criminal lawyer immediately.


Call us today for a free assessment
You don't have to jeopardize your future or waste thousands of dollars on excessive legal fees. Our goal is to have the charges withdrawn and the release conditions varied to allow contact without a risky and unnecessary trial. We provide effective and affordable lawyer representation for those charged throughout all of Ontario, Canada.

You don't need to be apart from your spouse and family, spend tens of thousands of dollars, and risk getting a criminal record because of an unfortunate domestic incident. Have a skilled criminal lawyer protect you and your future from the stigma and consequences of a criminal record.





Are you a lawyer? If you are defending a domestic assault/uttering threats/mischief related case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.

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