Defending against sexual assault charges in Canada

If you are charged with sexual assault in Canada, it is important that you know the rights you are entitled to.

In the criminal code of Canada, an allegation of sexual assault is any sexual act committed without consent, including touching, kissing, or penetration. Establishing consent is crucial in your defense, and we'll work together to challenge the crown’s evidence and present all evidence supporting your version of events.

In cases of sexual assault, the law states that a court decides what is consensual exclusively from the perspective of a victim. This means if a victim testifies that an act was not consensual and the court believes their evidence, the court will find that the act was not consensual.

The defence of a mistaken belief in consent acknowledges situations where the accused genuinely believed consent was present. However, the reasonableness of this belief is crucial. If the court deems the belief unreasonable, this defence may not hold.

In essence, navigating sexual assault allegations involves a thorough examination of the evidence surrounding consent. Dealing with sexual assault charges is daunting, however with our support and legal expertise you can face it with confidence.

What if I committed a crime while I was drunk and I don’t remember?

In some cases, intoxication can be relevant to refute the mental or ‘mens rea’ element of a criminal offence. An important distinguishing factor in the defence of intoxication is whether a person was voluntarily intoxicated. If an accused unknowingly consumes an intoxicating substance or had an unexpected reaction to medication, this will be considered involuntary intoxication, which could negate the intent of the offence. For example, if someone was forced to ingest an intoxicating substance or it was surreptitiously put into food or drink they ingested, the defence of involuntary intoxication will take effect. However, if a substance was voluntarily consumed and the person ought to reasonably have known that it was an intoxicant, an involuntary intoxication defence will fail. This was decided in court of appeal cases such as R v Chaulk and R v Abel.

Voluntary intoxication is more complex. Simply being intoxicated when you commit an offence is not in itself a defence. There is a very small percentage of cases where the intoxication is so extreme that a defence of voluntary intoxication is available. Voluntary intoxication can only be used in circumstance of a general intent offence, rather than specific intent. General intent offences only require the accused intended to do the act in question (for example, assault will only require touching another person without consent), while specific intent offences involve the intention of something more (for example murder requires intentional infliction of harm and intention to kill). If an accused wishes to use voluntary intoxication as a defence, the burden of proof then shifts to the defendant to prove on a balance of probabilities that they were so intoxicated that they lacked the mens rea to commit the offence. Even if an accused was intoxicated while committing a general intent offence, self-inducted intoxication will not be a defence if the accused departed from the standard of care reasonably required in Canadian society. As seen in R v Holland, simply producing evidence of intoxication is not enough to establish this defence. So, while intoxication CAN be used as a defence in some cases, it is under very strict circumstances, and it is up to the accused to convince the Court that it should be available to them.

Steps in the process with Ellis Criminal Law

Being charged with a criminal offense can be a daunting experience, but understanding the legal process can help alleviate some of the stress. Here's what you can expect:

Preliminary Work:

1. Initial Court Appearance: Your case begins with either an arrest or a summons to appear in court. While we will attend court on your behalf, you must call our office at 9:30 a.m. on your first court date only.

2. Request for Disclosure: Upon being retained, we will immediately request all disclosure from the Crown Attorney. This includes information provided by the police, such as witness statements and police notes.

3. Adjournments: We may need to adjourn your matter several times before setting a final date for resolution or trial. This is a normal part of the process and allows us to prepare your case effectively.

Court Process:

1. Update After Each Appearance: We will contact you within two business days after each court appearance to provide you with an update on your case.

2. Meetings with Crown Attorney: We will schedule meetings with the Crown Attorney to discuss your case and explore potential resolutions.

3. Judicial Pre-Trial Conference: If necessary, we will meet with a Judge and the Crown Attorney to attempt to reach an early resolution. If unsuccessful, we will proceed to trial.

Typical Court Steps:

1. Court Appearance: We attend court to request disclosure and note our representation.

2. Disclosure Review: We review the disclosure and request any additional information needed.

3. Resolution Meeting: We meet with the Crown Attorney to discuss potential resolutions.

4. Trial Readiness Certificate: We complete the necessary paperwork to certify readiness for trial.

5. Judicial Pre-Trial: We meet with a Judge and the Crown Attorney to attempt a resolution.

6. Trial or Plea Date: We attend court to select a trial date or enter a plea.

Important Reminders:

- Timeframe: Most cases take between 2 to 6 months to complete, though some may take longer if set for a preliminary hearing or trial.

- Team Approach: Our firm utilizes a team approach to handle your case efficiently and provide unparalleled service.

- Maintain Contact Information: It's crucial to keep your contact information updated to ensure effective communication and representation.

- Understand Conditions of Release: Familiarize yourself with the conditions of your release to avoid further legal complications.

- Confidentiality: For confidentiality reasons, we can only discuss your case with you, not your family or friends.

Understanding the steps involved in the legal process can help alleviate some of the uncertainty and stress associated with being charged with a criminal offense. If you have any questions or concerns, don't hesitate to reach out to our office for assistance.

A friend or loved one has been charged with a criminal offence and asked if I will be a surety. What does this mean?

A surety is someone who comes to court and commits to supervise an accused person while they are out on bail. Typically, a surety is an adult Canadian citizen (or permanent resident), and usually does not have a criminal record. A surety should be someone with regular contact with the accused, and that lives nearby. Sometimes, an accused is required to live with a surety as part of their release conditions. In deciding whether to allow you to be a surety for someone, the court will take into account many considerations, including how long you have known the accused.

Agreeing to become someone’s surety is a serious commitment to make, and should not be taken lightly. Being a surety involves being partially responsible for a person charged with a criminal offence. The court will determine whether you are eligible to be a surety, taking into account your assets, as well as your personal character. You must have enough assets to cover the bail amount, even though you may not be required to deposit the entire amount. You may be questioned, or have to testify in court as to your eligibility to be a surety. You may also be required to deposit or pledge a sum of money to the court which will be forfeited if you fail in your duties as a surety.

Some of the duties of a surety include ensuring the accused attends all court appearances and making sure the accused complies with their release conditions. As a surety, you are required to phone the police and report the accused if they are not complying with their conditions. If you fail to report it, you may be removed as surety and may forfeit the money pledged.

If you have fully thought out the decision and wish to be a surety, you should have a plan prepared for how you will ensure the accused will follow their conditions should the judge or justice of the peace ask you. You should also be prepared to be a surety for the accused for a substantial period of time, as the court process is lengthy. You could be responsible for being a surety for the accused for months or even years. You can, however, remove yourself as surety without giving reason by attending at court and requesting to be removed. The accused will then either be held in custody or will need a new surety.

Am I able to take back my guilty plea?

When you enter into a guilty plea, you are waiving your right to trial, meaning the crown no longer has to prove your charges beyond a reasonable doubt. Guilty pleas are usually assumed to be valid, particularly if you had legal counsel at the time you entered your plea. When you enter your plea, you are asked specific questions to determine whether you fully comprehend what it means to enter a plea of guilty. If, however, you do wish to withdraw your guilty plea, it is now up to you to prove to the court that you should be allowed to do so. Only under very limited circumstances will the court allow you to withdraw a guilty plea.

There are only two ways a judge will allow a withdraw of a guilty plea: if it is invalid, or at the judge’s discretion. The elements of a valid guilty plea are that the plea was voluntary, unequivocal and informed. In order for a court to set aside a guilty plea, one of these elements must be missing. When assessing whether the plea was valid, the court will look at a variety of factors including whether you were enticed or coerced in any way, whether you were under the influence of any substance that may impair your ability, whether you had previous experience with the justice system, if the judge asked all the questions necessary to enter a guilty plea, whether you have any mental health issues that would hinder your understanding, whether you expressed any hesitation with the charges, and whether there was a language barrier.

A guilty plea can also be withdrawn where it would be a miscarriage of justice not to do so. A situation where the judge can use their discretionary power to grant a withdraw of a plea includes where the accused has been given wrong legal advice, or where the accused could not be convicted of the offence based on the admitted facts.

It is important that you seek legal advice before entering into a guilty plea to make sure you are fully informed and understand the consequences of doing so. A withdraw of guilty plea is rarely granted, so it is always best to consult a lawyer before pleading.

What records are kept by the police if you are not convicted?

In Ontario, encounters with law enforcement can leave a lasting mark, even without a conviction. Police can maintain records of various things including:

·         Allegations: Reports or complaints, whether proven or not, can be recorded by police.

·         Withdrawn or Stayed Charges: Charges that are later dropped or paused by the prosecution can still be documented.

·         Acquittals: Being found not guilty after trial doesn't always mean a clean record; details may still be logged.

·         Mental Health: Information related to mental health may be included if relevant to the interaction.

It's important to understand that not all encounters with the police result in the collection of non-conviction information. However, if you've ever been charged with an offense, it's likely that some form of non-conviction information exists in police records.

It's crucial to know how this information can be accessed. Employers or volunteer organizations may request a Vulnerable Sector Check when assessing candidates for roles involving vulnerable populations. This type of check can reveal non-conviction details, potentially affecting decisions about employment or volunteering.

My loved one is being held as an “overnight arrest.” What will happen?

If someone is arrested in the evening, night, or early morning hours, they are often held by police until the next day. During this time, the police compile information about the charges that were laid and any investigation they’ve completed surrounding these charges. Using this information, police will decide if the person arrested can be released directly from the police station or if their previous criminal record or current charges are serious enough that the file must be passed on to the Crown Attorney.

For the latter category, the police file is passed on to the Crown Attorney’s office to be screened. This process can take several hours. The Crown Attorney has several options when screening a file for release. They can decide that they consent to the release with specific conditions of release, they can consent to the release with a surety or a residential surety, or they can decide that they do not consent to the release. If the Crown is unwilling to consent to someone’s release, then a bail hearing must occur to determine if the person can be released on bail. It is your legal right to be brought before a Justice of the Peace or a Judge within 24 hours after your arrest. If one of your loved ones has been arrested and you need advice, call us anytime. We are available to assist you 24/7.

Preventing Wrongful Convictions

Wrongful convictions are a serious injustice that can have devastating consequences for individuals and society as a whole. In Canada, as in many other countries, innocent individuals can be wrongly convicted of crimes they did not commit. However, effective legal representation plays a crucial role in preventing wrongful convictions and safeguarding the rights of the accused.

Our team tirelessly advocates for our clients' rights. We understand that investing in our firm means investing in the pursuit of justice.

In choosing our firm, individuals facing criminal charges can rest assured that they have a team of seasoned professionals in their corner. We are committed to fighting tirelessly on behalf of our clients, leveraging our expertise and resources to secure the justice they deserve.

Updates to SOIRA orders

SOIRA Orders

Under the Criminal Code (“CC”), when convicted of certain offences (ex. sexual interference, invitation to sexual touching, child pornography, sexual assault, etc.), an offender will be ordered to comply with the Sex Offender Information Registration Act (“SOIRA”).

A SOIRA order involves mandatory reporting to a registration centre:

• upon the Order or their release from prison

• once a year thereafter

• after any change in address(es) or name, or receiving a driver’s licence or passport

• before and after any departures of 7 or more days

Reporting to a registration centre involves reporting the following information:

• name, date of birth, gender, address(es), phone number

• height, weight, and distinguishing marks

• addresses of employment, volunteer, or education

• vehicle licence plate, make, model, body type, year, and colour

• driver’s licence number and passport number

SOIRA orders can last for 10 years, 20 years, or life, depending on the circumstances of the offence.

Recent Changes to SOIRA Orders

The Supreme Court of Canada recently made changes to SOIRA orders in the case of R v Ndhlovu.

The decision specifically dealt with 2 provisions of the Criminal Code:

• section 490.012: mandatory SOIRA orders for offenders convicted of designated offences (regardless of length, whether it be 10 years, 20 years, or lifetime)

• section 490.013(2.1): lifetime SOIRA orders for offenders convicted of multiple offences

The Supreme Court found both sections to be unconstitutional.

The lifetime law was immediately removed from the Criminal Code, and anyone who received a lifetime SOIRA order in the past can apply to have them varied to 10 or 20 years.

However, the mandatory law, while unconstitutional, was allowed to stay in the Criminal Code for 1 year, giving Parliament time to re-write the law in a way that is constitutional. This also means that anyone who got a mandatory order in the past, or who gets one in the next year, is not entitled to have them automatically lifted.

The Supreme Court still left open an option for those who receive a mandatory SOIRA order though. An offender can make an Application (*but no guarantee the Court will grant it*) arguing that the mandatory imposition of their SOIRA order was unconstitutional and should therefore be lifted, if they can prove the following:

1)   They are not at an increased risk to reoffend; and/or

2)   The compliance with their SOIRA registrations has been especially onerous

Contact us if you have more questions about varying your SOIRA order.

Do you need to give the police your phone password?

The Short answer is no. If the police seize your phone during a search, you don’t need to give them your password so they can open it. Section 7 of The Charter of Rights and Freedoms protects your interests in life, liberty, and security of the person. Included here are your rights to protect yourself against self-incrimination and to remain silent before a trial has started. By giving up your phone password during a search or investigation, you are acting as a witness against yourself.

Courts have upheld this right as well. In R v Shergill, police applied for a warrant to search Mr. Shergill’s phone for evidence of child pornography. Alongside applying for the warrant, they applied for an assistance order so that Mr. Shergill would have to unlock his phone for authorities. The Court rejected the application for an assistance order by upholding Mr. Shergill’s right to remain silent and not testify against himself.

One exception to this rule is at the U.S border. American Customs and Border Protection agents have the power to compel you to unlock your phone during a border search. If you don’t comply, they can seize the device for further review.

If you ever find yourself in a situation where the police are executing a warrant and ask for the password to your phone, computer, or any other electronic device, do two things. First, kindly say no. Second, give us a call at Ellis Criminal Law. Searches are stressful. We have the experience to make sure that your rights aren’t violated when they’re most vulnerable.