Sexual Assault – Sexual Assault Causing Bodily Harm – Aggravated Sexual Assault

Sexual Assault – Sexual Assault Causing Bodily Harm – Aggravated Sexual Assault

The enclosed article contains general legal information about defending charges of Impaired Driving, Over 80 etc. in Alberta. Those looking for specific information about a matter that is or about to be brought before the Courts should consult with a criminal defence lawyer immediately. This article provides legal information about the above captioned area for offences in Alberta. It is not intended to be used as a substitute for proper legal advice

Criminal Code of Canada

Our criminal defence lawyers defend a significant number of cases involving everyday people charged with impaired driving and over 80 charges pursuant to the Criminal Code of Canada. When charged with a driving related offence, it is crucial to obtain prompt, knowledgeable advice on the defences that you may have to your avail to fight these cases as they are technical nature and thus mandate a specialized knowledge of law.

Mr. Patel was employed as a crown prosecutor in the Criminal Driving Unit at Alberta Justice – Calgary Prosecutions. He prosecuted impaired driving cases on a full time basis for the government. He has secured has specialized knowledge and training of Impaired Driving, Over 80 and DUI Law and cases. Our criminal law firm deploys an exhaustive approach in defending these types of charges – from exploring the legality of the traffic stop, possible weaknesses in the validity of the breath tests, to evidence to the contrary utilizing expert testimony of a toxicologist and vigorous cross-examination of the arresting officer(s). Our approach to defending our clients is predicated on thorough review of the facts, an exhaustive examination of all criminal law and Charterissues germane to the purported traffic stop (under the Traffic Safety Act or Highway Traffic Acts), with a view to developed a cogent theory in your case. Each case merits an individual assessment. We are a firm built on the foundation of significant trial success. You have a right to vigorous and effective defence when charged with a crime. Exercise that right by working with a trusted and focused advocate. Call our office at 403-585-1960 or contact us online at jpatel@defence-law.com to schedule a consultation with our professionals. In the interim, we generally endeavour to provide you with as much legal information as possible.

Credibility

In the case of denial, credibility will often be an issue. The Criminal Courts in Canada assess credibility in criminal trials through a specific legal lens. It is not a simple “he said, she said” determination that is evinced. The Courts will determine credibility through the following formula, which is recited to a jury:

» show more

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

Reference: R.v.S. (w.d.), [1994] 3 S.C.R. 521; http://scc.lexum.org/en/1994/1994scr3-521/1994scr3-521.html

Sexual assault cases are often defeated on credibility determinations.

» show less

Consent

Consent may, depending on all the circumstances, raise a defence to the charge of sexual assault. Consent is defined in the Criminal Code of Canada as follows “the voluntary agreement of the complainant to engage in the sexual activity in question”. Consent is vitiated (not available) under some of the following circumstances:

» show more

  • The agreement is expressed by the words or conduct of a person other than the complainant;
  • The complainant is incapable (i.e.incapable due to the consumption of alcohol or drugs, age or mental disability) of consenting to the activity;
  • The complainant is induced to engage in the activity by abusing a position of trust, power or authority;
  • The complainant expresses, by words or conduct that is demonstrative of a lack of agreement to engage in the activity;
  • while the complainant initially consented to sexual activity, such consent to sexual activity is subsequently withdrawn by expresses words or conduct.

One may also assert an honest but mistaken belief to (a) sexual act(s). However, this defence is not available when the said belief came to fruition through self-induced intoxication; if one is “reckless” or willfully blind relative to the complainant’s lack of consent; if the accused person is unable to articulate the words used to buttress consent; and the where the accused person does not take “reasonable steps” in the circumstances to ascertain whether or not the complainant was in fact consenting.

» show less

Again, a criminal defence should be mounted right from the beginning. The use of experts, psychologist, private investigators and (in some instances) polygraph experts ought to be marshaled in support of your defence where applicable.

(i) The definition of sexual assault and how it is general assess from the Canadian Criminal Courts.

The Criminal Code of Canada does not specifically provide a definition of sexual assault, however s. 265(1) defines assault and s. 265(2) explicitly applies that definition to sexual assault.The most commonly applied part of that definition is s. 265(1)(a), the intentional application of force without the consent of the complainant.A sexual assault is an assault within any one of the definitions of assault in s. 265(1). The integral difference between the baselines definition of assault as per s. 265(1) and sexual assault as posited in s. 271 of the Criminal Code lies in the circumstances of the impugned assault. A sexual assault must be sexual nature such that the sexual integrity of the victim is violated. Some of the factors that the Courts have considered which distinguish a sexual assault from a common assault are: (a) the nature of the alleged contact from the accused person; (b) what part of the body of the complainant was touched; (c) and words, conduct or gestures that were associated with or companied the contact; (d) the intent of the accused person (which may be objective gleaned; i.e. whether there was any indication of sexual gratification; and (3) any other circumstances.

» show more

(ii) Predicate Offences: Sexual Assault Causing Bodily Harm and Aggravated Sexual Assault

Similar to the criminal offence of assault, sexual assault comes in a number of statutory permutations. The Criminal Code of Canada provides the following definitions: Sexual assault causing bodily harm includes the above noted elements of sexual assault with the added consideration of s. 2 of the Code and the definition therein. Section 2 defines “bodily harm” as: ” . . . any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling in nature.” Aggravated sexual assault is defined in s. 273(1) as:”Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.”

(iii) Penalties

By and large, these offences attract a jail term. For major sexual assaults, the term of imprisonment accordingly to the Alberta Court of Appeal is a four (4) year starting point. Moreover, if you are convicted of a sexual offence, you will be required to provide a sample of your blood to the national DNA bank. In most cases, you will be required to register in the Sexual Offender Information Registry.

(iv) Defences

The most common defences to sexual assault are denial or consent.

» show less

Recent Developments in the Case Law

The Supreme Court of Canada in Regina v. Saeed has recently modified the common-law test for policing powers on searches incident to arrest regarding the use of penile swabs on sexual assault cases.  To read the most recent post, click on the following link:  http://localhost/immigration-php/2016/10/06/developments-in-criminal-law/

Disclaimer

The enclosed article contains general legal information about defending criminal charges of sexual assault (causing bodily harm and aggravated sexual assault). Those looking for specific information about a matter that is or about to be brought before the Courts should consult with a criminal lawyer immediately. This article provides general legal information about the captioned offences; and it is not intended to be used as a substitute for proper legal advice.

If you have been charged with sexual assault, contact J.S. Patel, Barrister at 403-585-1960 or 1-888-695-2211 for a free initial consultation.

Latest News

Our client was facing various charges under criminal law including impaired driving, “Over 80” and dangerous driving. The allegation were significant In our view, the best defence for our client was under the Canadian Charter of Rights and Freedoms. Accordingly,...Read More