What is a Sexual Offence?
The most common charge in this category is Sexual Assault, which is the intentional application of force of a sexual nature or in circumstances that are sexual.
Other offences include Sexual Exploitation, which is sexual contact by a person in a position of authority.
Sexual exploitation is sexual contact on a person under the age of 16, and Sexual Invitation is inviting a person under the age of 16 to touch another person for a sexual purpose.
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- While the complainant initially consented to sexual activity, such consent to sexual activity is subsequently withdrawn by expresses words or conduct.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 the 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 vigour and properly and effectively advance your version of events.
Allegations of sexual assault can have devastating implications that may follow you for the rest of your life. If you are convicted of a sexual offence, there is a strong chance that it will attract a jail term. For major sexual assaults, the Alberta Court of Appeal has mandated a 4-year starting point in jail. If you are convicted, you will be required to provide a sample of your blood the National DNA databank, and you may be required to register in the Sexual Offender Information Registry (SOIRA).
How can we Help?
Given the severity of the possible consequences and the stigma of a sex crime, it is vital that you hire a lawyer who will zealously defend you to advance your version and raise every possible defence to which you are entitled to at law. Your liberty, and personal and professional life may hang in the balance, and we will work tirelessly to uphold your rights and use our experience and reputation to either beat the charges outright, or minimize their penalties to the greatest extent possible.
R v A.A.
A.A. was being investigated by the police in relation to an allegation of sexual assault by an acquaintance. After finding out the police wanted to talk to A.A., A.A. sought pre-charge legal advice in relation to A.A.’s rights and obligations under the law. A.A. also sought advice about what, if any, interaction A.A. should have with the police.
After extensive preparation and an independent, A.A. gave a police interview. A.A. went into the interview with the benefit of a full understanding of the legal jeopardy involved, the risks of giving an interview, an understanding of police interview techniques and a strategy to minimize any potential exposure. A.A. followed the interview plan and was able to explain to the police what happened without incriminating himself. A.A. was not charged and the police file was closed.
R. v G.W.
The client was charged with committing a sexual assault on his daughter. This was a historical sexual assault allegation from years prior, with ties to other jurisdictions, and several other witnesses, giving rise to many complex legal issues. After a years’ long investigation, preliminary inquiry, and a trial that lasted several months with many pre-trial applications, the client was found NOT GUILTY, and avoided the starting point of 5 years jail if he had been convicted.
R v R.N.
R.N. was charged with two counts of sexual assault after an allegation from an ex-romantic partner. Mr. McKay took over the file from other counsel shortly after the preliminary inquiry. Mr. McKay had extensive discussions with the Crown during the pre-trial conference process and the Crown stayed the charges before trial dates were set.
R. v. B.P
B.P. was charged with sexual assault and sexual exploitation. The prosecuting authorities alleged that B.P.’s girlfriend was not old enough to consent to a sexual relationship. The client decided to contact his former lawyer, Ian McKay, in order to assist with these charges. On the day set for preliminary inquiry, Mr. McKay convinced the prosecuting authorities that the investigation was seriously flawed and that the prosecution was doomed to fail. Much to the chagrin of the local police force, all charges against B.P. were dropped.
R. v. P.G.
P.G., who resided in another jurisdiction, was subject to a Canada Wide Warrant for his arrest for a very serious crime. P.G. retained Mr. McKay in order to negotiate the terms of his release if he were to return to Alberta and to defend him against the allegations. Not only did Mr. McKay immediately secure his release but Mr. McKay had all charges dropped against P.G. within 3 weeks.