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DEFENDING THE FALSELY ACCUSED IN SEXUAL ASSAULT CASES

The current public climate punctuated by catch phrases such as “believe the victim” and the “me too” movement has led to the police laying far more charges of sexual assault. If you follow the victims’ right’s advocates, the police should readily believe the complainant and lay criminal charges. From a defence perspective, there is a real risk that these charges are false; being falsely accused of sexual assault can have horrendous consequences for the innocent. See a recent article in the National Post entitled “Handbook for Men Falsely Accused of Sexual Assault” (December 20, 2017, by Barbara Kay) which recounts the nightmare experience of a young man falsely accused of sexual assault. Judges have also recognized the danger posed by these populist slogans to the fairness of the criminal justice system. In R. v. Nyznik, 2017 ONSC 4392, Justice Malloy stated at paragraph 17:

Although the slogan “Believe the victim” has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our constitution and the values underlying our free and democratic society.

Our courts place a huge emphasis on the presumption of innocence in sexual assault cases because these are very serious offences with horrendous consequences should the accused be convicted. Among the consequences of being charged with sexual assault are publicity in the local media which can lead to the loss of employment, and social stigma in the community. As well, the accused can be subject to release conditions which severely restrict free movement and the ability to communicate via the internet or cellular telephone devices. A person accused of sexual assault will usually be facing a lengthy legal process before a trial which can sometimes be years away. All the while, the accused remains under restrictive conditions and has the possibility of a conviction at trial hanging over his/her head. This can be extremely costly and nerve-racking for anyone. Most people accused of sexual assault, have never been charged with a criminal offence and have no idea of what lays ahead. A conviction at trial can result in a sentence of years in prison and being registered as a sex offender.

Because the consequences are so severe for anyone accused of sexual assault, we follow a very pro-active strategy to ensure that every defence possible is employed on behalf of our clients.

A person facing a possible charge of sexual assault should consult with an experienced criminal defence lawyer before making any statement to the police. The consequences of a conviction for sexual assault are so serious that a person facing such an accusation should say absolutely nothing to the police. The police will always want to interview a sexual assault suspect because any admissions they can get will make it more likely that there will be a conviction at trial.

When the police invite a sexual assault suspect to come in for an interview, the purpose of the interview is to obtain incriminating admissions which will make the prosecutor’s job easier at a trial. In our experience an accused who provides a statement to the police is far more likely to be convicted than a person who exercises his right to silence. In advising clients who are about to be arrested by the police or have been invited to come in for an interview at the police station, we tell clients they should exercise the right to silence. We tell them to remind themselves of the importance of exercising their right to silence, that they should write two words on the palm of their hand in black ink, “SHUT UP”. The police investigators plan their interviews with suspects and employ every tactic possible to obtain incriminating admissions. The police objective is always to obtain evidence to support a conviction, not to let an accused talk his way out of a charge.

Our first step in representing an accused charged with sexual assault is to write the prosecutor seeking the entire contents of the police file in regard to the charge. These file materials will usually include audio/video recorded statements from the complainant and possibly other witnesses, as well as any statement which the accused gave the police. In our experience, the prosecutor’s office will attempt to conceal any information which will lead to the address and other contact information for the complainant and other prosecution witnesses. At Singleton & Associates, we will routinely fight efforts by the prosecutor to restrict access to this information which we consider to be crucial in properly defending our client. In fact, we went to court and challenged the prosecutor’s attempts to conceal such information. The decision of the Honourable Judge Michael Sherar in R. v. Nickerson, 2016 NSPC 72, is the leading decision in Nova Scotia and it states that the prosecutor to provide all relevant information to Defence Counsel.

Once we obtain full and complete disclosure from the prosecutor, we meet with our client to determine the best way to proceed in defending them against the sexual assault charge. In most cases where the prosecutor has proceeded by way of “indictment”, we advise having a preliminary inquiry in the Provincial Court before proceeding to a trial in the Supreme Court of Nova Scotia. The purpose of a preliminary inquiry is to give Defence Counsel an opportunity to examine the complainant in a sexual assault case before having to conduct a cross-examination at trial. At a preliminary inquiry, all evidence is being recorded and a transcript will be available at trial to compare the complainant’s testimony gave at the preliminary inquiry with their testimony at trial. Frequently there are serious contradictions in this evidence which can be used by an experienced criminal defence lawyer to suggest that the complainant’s evidence is not credible or reliable.

We note that some prosecutors will choose to proceed “summarily” with a sexual assault case in an effort to shield the complainant from being subject to an intensive cross-examination at a preliminary inquiry. When the prosecutor proceeds “summarily”, the accused only has a right to a trial in the Provincial Court and will not be able to have a preliminary inquiry. The effect of the prosecutor proceeding summarily deprives the accused of a right to have a preliminary inquiry which can be crucial to a successful defence of a sexual assault charge. If the prosecutor proceeds “summarily” with a sexual assault charge, the maximum sentence is eighteen months in a provincial jail and mandatory registration as a sex offender. Serving time in a provincial jail is often worse than serving a sentence in a federal prison given the maximum security detention and lack of parole.

In most sexual assault cases, the issue is whether or not the complainant consented to the sexual activity. Consent can be by words and/or actions. A person can consent to some sexual activity and not to other sexual activity. Consent may exist at the beginning of the sexual encounter and be withdrawn at some point afterwards. A person who is intoxicated can consent to sexual activity. A judge will determine, based on the facts of the case, whether the complainant was able to consent despite having consumed alcohol. In consent cases, evidence of earlier interactions between the complainant and the accused, for example at a party before the sexual activity, may be highly relevant in determining a complainant’s state of sobriety and her ability to consent to the sexual activity.

An accused facing a charge of sexual assault has an uphill battle in defending himself/herself given the enormous power and resources of the state in prosecuting such a case. The police and the prosecutor’s office have virtually unlimited resources at their disposal. In comparison, an accused has to pay for the services of a competent criminal defence lawyer and all other costs associated with his/her defence. While the prosecutor has all of the resources of the police available for further investigation, an accused often has to come up with additional funds so that his/her lawyer can hire an investigator to obtain background information on the complainant and other witnesses. Given the great imbalance in resources between the prosecutor and an accused, an experienced criminal defence lawyer must aggressively pursue all defences available to his/her client and must be extremely alert to attempts by the prosecutors to use evidence, such as statements, that may not be admissible at trial.

The punishment, if an accused is convicted of sexual assault, is very severe. If the prosecutor proceeded by way of “indictment”, an accused convicted of sexual assault is liable to imprisonment for a term of up to ten years. If the complainant was under sixteen years of age at the time the assault occurred, the maximum punishment could be up to fourteen years, with a minimum punishment of a term of one year in prison. If the prosecutor proceeded by way of “summary conviction”, the maximum punishment is eighteen months in a provincial jail. If the complainant was under the age of sixteen years, the maximum punishment is a term of two years, less a day, in a provincial jail with a minimum punishment of six months. In addition to a term of incarceration, an accused convicted of sexual assault is also subject to a mandatory sex offender registry order (SOIRA) and will also be ordered to provide a DNA sample and not be permitted to possess or use firearms. In some cases a person convicted of sexual assault can also be ordered not to be near schools, playgrounds or other places frequented by children and be subject to an order not to use any device capable of accessing the internet.

Other consequences of a conviction for sexual assault may well be worse then the sentence imposed by the Court. The notoriety which comes with a conviction may render the offender unemployable. The sex offender registry order (SOIRA) will make it next to impossible to escape the stigma of a sexual assault conviction even if the offender moves to a new town in a different province.

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