Sexual Assault Charges
At Kostman and Pyzer, Barristers, we have a strong history defending allegations of sexual assault.
The crime of “sexual assault” involves any non-consensual touching of a “sexual” organ, and includes conduct from the touching of the breasts over the clothing to more serious criminal acts like rape. The politics of sexual “consent” are often blurred, especially where the participants consume alcohol or drugs.
Where the issue is identity, a lack of forensic evidence in the form of DNA (from seminal fluids) may raise a reasonable doubt as to the identity of perpetrator. In the summer of 2013, our office successfully represented the defendant in the case of R. v. Fast. It was alleged that Mr. Fast walked by a female pedestrian in downtown Toronto one night, and grabbed her in the groin area. A second independent witness also observed the act. Police were called. Approximately 20 minutes later, Mr. Fast was found approximately one kilometer away. He matched the description provided by the Complainant as to the perpetrator’s age, dress and ethnicity. The Complainant identified Mr. Fast at his trial as the perpetrator. At his trial the defence successfully raised a reasonable doubt as to identity, arguing that the police had failed to follow standard photo-lineup procedures and pointed to inconsistencies between the evidence of the Complainant and the other independent eyewitness. Furthermore, the defence established that the specific location where the sexual assault occurred was poorly illuminated, and the complainant was distracted immediately prior to being assaulted.
More often, in sexual assault cases, the critical legal issue is “consent”. Did the Complainant consent to the nature and quality of the sexual act? Sexual acts, whether consensual or otherwise, often occur in private, and without independent witnesses. Seminal fluids or other DNA may establish identity. There may be no other physical evidence of a non-consensual act in the form of bruises or torn clothing or overheard protestations. These are the difficult cases. An allegation of sexual assault can be used as a weapon to exclude a spouse from the home, or to gain an advantage in child custody proceedings. Where the allegation is she said – he said, a judge must consider the evidence of the parties, and decide if they are convinced beyond a reasonable doubt.
In the spring of 2013, Kostman and Pyzer, Barristers successfully defended its client Mr. B on an allegation of sexual assault. The Complainant testified that she did not consent to the sexual acts of kissing and touching over the pants in the groin area. The defendant testified that the Complainant was an active participant in the kissing and had effectively invited the touching by her behaviour. He testified that when the Complainant resisted, he discontinued his attempts at more sexual activity, and resumed kissing her. The defence successfully brought application for the Complainant’s counseling records. At trial, His Honour Judge Gage acquitted Mr. B, unimpressed with the Complainant’s version of events. His Honour commented adversely on the Complainant’s failure to preserve text message evidence, and her omission of critical facts in her initial report to the police. The Crown is appealing.
Recently, in March of 2014, in the case of R. v. Hutchinson, the Supreme Court of Canada confirmed that “consent” in sexual assault cases may be vitiated by fraud, where an individual fails to disclose significant information to their sexual partner that could result in significant physical implications. Previously, it had been decided that where an HIV infected individual does not disclose their physical condition to an unsuspecting partner, and engages in unsafe sexual practices, “consent” is vitiated, and the act constitutes a sexual assault. In the Hutchinson case, the defendant had surreptitiously pierced the condom that was used so as to expose the Complainant to pregnancy, thinking that a pregnancy would enhance the likelihood that the Complainant would stay with him. In fact, the Complainant did become pregnant, and terminated the pregnancy. The Court found that the act of surreptitiously piercing the condom and exposing the Complainant to an unwanted pregnancy vitiated the Complainant’s consent and constituted a sexual assault. The defence argued unsuccessfully that if Mr. Hutchinson’s act constituted a sexual assault, then any act of intercourse where the parties fail to accurately share information about contraception could give rise to an allegation of sexual assault.
The consequences of a conviction for sexual assault may be devastating. A person convicted of sexual assault would ordinarily receive a criminal record and may lose their liberty. Furthermore, in such circumstances, an individual may have to register as a sex offender and provide their address and employment to the police on a regular basis.
At Kostman and Pyzer, Barristers, we aggressively defend sexual assault cases. If we cannot successfully negotiate the allegations away, we bring skilled advocacy to challenge the evidence of the accuser, and prepare our clients for their day in court.