From early advice to civil fallout, what defence counsel must weigh at every stage
Defence counsel advising clients charged with sexual assault should be mindful of several key issues that can significantly affect both the conduct of the defence and the client’s long‑term consequences. When a client maintains they have been wrongfully accused, the stakes are particularly high and missteps at an early stage can be difficult to cure. The following are five considerations that can help ensure accused persons are appropriately protected.
- Get legal advice early
When a client has been falsely accused of sexual assault, it is critical that they consult with counsel at the earliest opportunity. Defence lawyers should ensure that accused persons thoroughly understand their rights and obligations under the law before they make any decisions or engage in any communication regarding the alleged incident(s).
Even seemingly innocent interactions between the accused and the complainant can be used against the accused at trial. For example, an accused may apologize in an attempt to diffuse conflict but may, in turn, make the situation worse. Such an apology, especially in writing, can be misconstrued or twisted and used as an admission of guilt. Early advice on avoiding direct contact with the complainant and on preserving relevant evidence can be crucial to the ultimate outcome.
- The context in which the allegation arose can have significant implications
The context in which a false allegation arises, and the relationship between the parties, can impact potential defences and raise additional procedural issues. This is especially true where the allegation arises in the context of an employment relationship or on a high school, college, or university campus.
When an allegation of sexual assault arises between co‑workers or classmates, the institution or employer will generally investigate pursuant to its internal policies. Ontario law requires employers and educational institutions to create and maintain sexual violence or harassment policies and to investigate reported allegations of sexual misconduct or violence.
When an employer or educational institution conducts an investigation of this nature, the accused is often required – or at least strongly pressured – to participate. This can significantly complicate matters if the incident is, or later becomes, the subject of a police investigation.
Those charged with a criminal offence have various rights, including the right to remain silent and the right not to self‑incriminate. These rights do not exist in the same way in the context of a workplace or school investigation. As a result, any evidence collected during the institutional investigation, including statements of the accused, can and will be used by the police and Crown should charges be laid. Defence counsel must therefore navigate the tension between protecting the client’s position in potential or ongoing criminal proceedings and managing the realities of employment or academic jeopardy.
- Sexual assault cases are procedurally and evidentiary complex
Sexual assault trials can become procedurally complicated. An accused can be convicted on the testimony of the complainant alone, provided the trier of fact accepts that evidence beyond a reasonable doubt. In any criminal trial there are strict rules regarding what evidence can be used, and the law imposes particular constraints in the sexual assault context.
One common example is evidence of past sexual activity of the complainant. As a general rule, any evidence about sexual activity other than the sexual activity that makes up the subject matter of the trial cannot be advanced. Defence counsel is not permitted to ask the complainant about any other sexual encounters they may have had without first bringing an application under section 276 of the Criminal Code. A section 276 application will only be successful where the evidence of prior sexual conduct is relevant, not rooted in myths or stereotypes, and is directly related to an issue at trial.
These applications can be fact‑ and resource‑intensive and may restrict the evidence the defence can present at trial. Counsel must carefully assess at an early stage whether such an application is warranted, how it will affect the complainant’s testimony and trial scheduling, and how best to marshal the available evidence (including digital communications and third‑party records) within the existing statutory framework.
- Penalties and collateral consequences can be harsh
Those convicted of sexual assault will face significant custodial sentences, restrictive ancillary orders, and, in many cases, serious collateral consequences. Penitentiary sentences (two years or more) are routinely ordered in cases of sexual assault, especially where there are aggravating facts such as a position of trust, multiple incidents, or significant harm to the complainant.
An offender who is not a Canadian citizen is likely to face immigration consequences once released from custody, with some offenders losing status and being deported. Courts also routinely impose sex offender registration orders, DNA orders, and weapons prohibition orders on those convicted of sexual assault. Many such orders are mandatory and may remain in place for the duration of the offender’s life.
For defence counsel, this means that plea discussions and sentencing advocacy must take into account not only the custodial range, but also the client’s immigration status, professional licensure, employment prospects, and long‑term supervision and registration obligations.
- Civil implications and limited recourse for the wrongfully accused
In addition to the consequences associated with a criminal prosecution, an individual accused of sexual assault may also face civil sexual assault proceedings. It is not uncommon for complainants to pursue damages in civil court. Even if the accused is acquitted in criminal court, they may still be sued and found liable in civil proceedings due to the much lower standard of proof.
By contrast, an individual who has been wrongfully accused of sexual assault rarely has effective recourse against their accuser. Courts are reluctant to allow these types of lawsuits, largely due to the chilling effect such claims could have on victims reporting incidents of sexual assault to police and participating in the justice system. As a result, successfully pursuing a lawsuit against an individual for wrongful sexual assault allegations is rare, and counsel must manage client expectations accordingly.
Carley Reynolds is a sexual assault lawyer at Donich Law.
This article was provided by Donich Law
