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What Evidence Proves Most Viable in Canadian Sexual Assault Cases

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According to the latest “ Incident-based crime statistics ” report from Statistics Canada, Ontario police investigated over 12,000 sexual assaults reported in 2022. While more than half remain under investigation, police charged about 3,500 suspects with criminal sexual assault and cleared almost 2,000 of the reports without laying charges.

Meanwhile, Stats Can’s latest data on criminal court decisions reports that of the 4,774 Ontario sexual assault cases that went to trial during the 2021/2022 reporting period, only 12% — 571 — resulted in a conviction. While 267 defendants were acquitted, another 3,890 had their charges stayed or withdrawn.

Given the dismal conviction rate, the sexual assault defence lawyers of the Greater Toronto Area’s Mass Tsang law firm think it’s an opportune time to examine what makes the most viable evidence in Canadian sexual assault cases. While our focus is on evidence that can be used to prove the charges, we’re defence lawyers, so we’ll review evidence favourable to a defendant, too.

Sexual Assault as Defined by the Criminal Code

Canada’s Criminal Code essentially defines “level one” sexual assault under Section 265 (1)’s definition of “assault” by noting that it also applies to all forms of sexual assault. Thus, the following forms of assault constitute a “sexual” assault if committed with sexual intent:

  • The non-consensual application of intentional force to another person conveyed directly or indirectly.
  • An attempt or threat, by act or gesture, to apply force to another person, provided there is reasonable belief by the victim that the offender can carry out the attempt.
  • Openly wearing or carrying a weapon or imitation of one while accosting or impeding another person.

The two other, more severe levels of sexual assault add these parameters:

  • Sexual assault with a weapon, threats to a third party or causing bodily harm.
  • Aggravated sexual assault.

The first of these is self-evident, while “aggravated” in the second means that the sexually oriented assault wounded, maimed, disfigured or endangered the life of the victim.

The penalties for an indictable level one assault — everything from unwanted sexually oriented touching to rape — range from one to 10 years imprisonment. As a summary conviction offence, the penalties range from six to 18 months in jail. The penalties for higher-level sexual assaults range from five years to life in prison. Those convicted also face the mandatory registration and reporting requirements of the national sex offender registry .

Primary Evidence Used to Prosecute Sexual Assault Cases

“Sexual assault prosecutions are difficult,” declares a 2018 Department of Justice report , Moving Forward: Promising Practices for the Prosecution of Cases of Sexual Assault Against Adults . “There may be no forensic evidence, no witnesses, or no visible injuries. The absence of these features impacts the likelihood of conviction, but it is not necessarily fatal.”

It is not necessarily fatal because victim testimony is one of the most crucial forms of evidence used in sexual assault cases. In some instances, the Crown can successfully prosecute a sexual assault primarily on the strength of witness testimony. Viable witness testimony must be credible, consistent, specific, detailed, and not falter when challenged during cross-examination. Other evidence corroborating the testimony can significantly bolster the Crown’s case.

Other evidence the Crown uses to secure convictions in sexual assault cases includes:

Physical Evidence

  • DNA from semen, hair, saliva, or other sources
  • Biological material linking the suspect to the victim or crime scene.
  • Medical reports detailing injuries or evidence of the sexual assault
  • Clothing or personal items that may show signs of struggle or otherwise corroborate other evidence.

Electronic Evidence

  • Surveillance footage or other recordings that may have captured the incident or clarified how it unfolded.
  • Text messages and e-mails that might provide context on the relationship (if any) between the victim and accused and support the victim’s testimony.
  • Social media posts or other online activity relevant to the victim’s testimony.

Witness Testimony

  • Eyewitnesses who witnessed the sexual assault or events leading up to or following it.
  • Character witnesses who can clarify the character of the victim or suspect to help better judge their credibility.

Expert Testimony

  • Forensic experts who can detail the significance of DNA and other physical evidence.
  • Psychological experts who can explain how the sexual assault has traumatized the victim or otherwise detail elements of the victim’s mental state that may have relevance to the assault.

Behavioural Evidence

  • Evidence of similar assaults committed by the suspect.
  • The post-assault behaviour of the victim as marked by reporting the offence, seeking medical or professional help, and changes in behaviour.

Documentation and Reports

  • Medical records documenting injuries or any treatment the victim received after the assault.
  • The police report documenting the initial complaint, investigative steps, and evidence collection efforts.

Defence Evidence in Sexual Assault Cases

Sexual assault defendants typically rely on exculpatory evidence and any evidence that can challenge the veracity and viability of the Crown’s evidence. The Crown must prove its case “beyond a reasonable doubt” threshold, and anything a defendant can do to raise doubts bolsters their case. Naturally, the absence of any of the Crown’s referenced evidence helps the defendant’s case, as does evidence that refutes it. Alongside this, primary evidence defendants rely on to defend against sexual assault charges includes:

Alibi Evidence (defendant not present at alleged assault)

  • Testimony from credible witnesses.
  • Receipts, electronic device location data, and time-stamped photographs.
  • Surveillance camera footage.

Inconsistencies in Victim’s Testimony

  • Changes in the victim’s narrative over time.
  • Differences between the victim’s initial report and trial testimony.
  • Behaviours inconsistent with the victim’s allegations.

Witness Testimony

  • Eyewitnesses who can support the defendant’s account of what took place.
  • Character witnesses who can detail the defendant’s character, reputation, and behaviour inconsistent with the alleged sexual assault.
  • Victim behavioural witnesses who can show that the victim’s post-assault behaviour was inconsistent with someone who has experienced an assault.

Electronic Communications

  • Text messages and e-mails that might show inconsistencies in the victim’s narrative of the events.
  • Social media posts or other online activity that supports the defendant’s narrative or rebuts the victim’s.

Historical Evidence

  • Evidence that the victim had previously falsely accused anyone of sexual assault.
  • While significantly limited by rape shield laws , evidence of the victim’s past sexual behaviour if it can be directly linked to the case.

Whether or not the victim consented to the sexual activity that constituted the alleged sexual assault is often a critical factor in sexual assault cases. In such cases, the credibility of the victim or defendant can serve as the crux of the outcome. Absent other evidence, determining whether consent was granted or withheld is challenging. However, the Supreme Court of Canada recently clarified that “capacity” is a precondition for granting consent. In R. v. G.F. (2021 SSC 20 1 S.C.R 801) , the high court ruled that consent may not be considered valid if given by someone whose mental state is severely impaired by an intoxicating substance.

Consult the GTA Sexual Assault Criminal Defence Lawyers at Mass Tsang

The sexual assault defence lawyers at Mass Tsang have successfully defended 100s of clients from sexual assault charges in the Greater Toronto Area. To secure a robust defence to challenge your sexual assault charges, contact the skilled legal team at Mass Tsang.

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