Do I have a defence?

The most common defence to these charges is either denial or consent. If you hire an effective lawyer, sexual assault prosecutions can be defeated on determinations of credibility.

Consent is defined in the Criminal Code of Canada as “the voluntary agreement of the complainant to engage in the sexual activity in question”. Consent not available under some of the following circumstances:

• 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• While the complainant initially consented to sexual activity, such consent to sexual activity is subsequently withdrawn by expresses words or conduct.

You 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 where the accused person does not take “reasonable steps” in the circumstances to ascertain whether or not the complainant was in fact consenting.

Consent is not available as a defence for persons allegedly in a position of authority and the complainant is under the age of 18, nor is it available as a defence if the complainant is under the age of 16. Depending on the facts, a myriad of other defences may also be available, but when advancing a defence of denial or consent, the case will likely turn on the testimony of the complainant, which is why it is imperative to hire a lawyer with the ability to cross-examine the complainant with vigor and properly and effectively advance your version of events.