Sexual Assault Lawyers in Victoria

What is Sexual Assault?

Sexual Assault covers a wide variety of conduct and is one of the most litigated offences in criminal law. It can include something as simple as an unwanted hug, kiss, or grope, to much more serious conduct, like intercourse. Some of the core issues in proving this offence involve whether the contact occurred for a sexual purpose, or with a sexual body part. But by far, the most common controversy surrounds the issue of consent.

The type of sexual offence charged depends on many factors, including the age of the victim, the extent of sexual contact, and the number of incidents.

Penalties become increasingly severe as the circumstances of the offence become more violent or have more significant consequences.

Other sexual offences include the following:

• Sexual assault with a weapon,
• Sexual assault causing bodily harm,
• Overcoming resistance by choking, strangling, or suffocating,
• Sexual interference,
• Invitation to sexual touching,
• Incest,
• Sexual exploitation,
• Aggravated sexual assault, and
• Distribution of intimate images.

Sexual assault is not uncommon in British Columbia. According to Statistics Canada, 7% of victims of police-reported crime in 2016 were victims of sexual assault.

The relevant provision for sexual assault in the Criminal Code of Canada is:

This offence has often been described as a “gender-based” offence, and in the recent “me too” era, there has been a mounting social movement to believe the complainant. For these, and many other reasons, sexual assault allegations have become some of the most stigmatizing offences we defend, and it can often feel like you are presumed guilty in the court of public opinion.

The mere threat of sexual assault charges can ruin a career, a family, or reputation. When people hear “sexual assault” they often think of a sexual predator. But in reality, sexual assault allegations affect a wide cross-section of the population. These allegations can arise from every day interactions between people who are respected, well adjusted, and well-liked.

Some of the most common situations where sexual assault charges can arise include:

• Contact of a sexual nature on a date
• Contact of a sexual nature during a work function
• Contact of a sexual nature during a party (often involving drinking)
• Contact of a sexual organ during a medical treatment
• Contact of a sexual nature between kids at school

Even sexual activity between dating or married couples can become the subject matter of a sexual assault allegation upon dissolution of the relationship.

Sexual assault charges commonly arise out of domestic situations. If your sexual assault charge involves a past or present romantic partner or a family member, please see our Domestic Violence page.

Investigation of Sexual Assault Charges in Victoria

An investigation of a sexual assault allegation in Victoria is typically initiated by the alleged victim (or relative or witness). They contact the local police and report it. The police will request a written statement from the complainant and any witnesses, then they will launch an investigation.

Because sexual assault is a violent offence, it requires a thorough police investigation. Police will typically interview all witnesses to the offence, review surveillance videos, seize any weapons and photograph the scene. A forensic examination, or “sex assault kit,” is frequently conducted in order to gather DNA evidence and medical evidence to prove the type and extent of the alleged victim’s injuries.

After the police have gathered their evidence, they will arrest you if they believe you are the perpetrator. If you are not present at the scene, police will track you down or issue a warrant for your arrest. The police may obtain a warrant to obtain DNA evidence from you to determine if it is a match to DNA found at the scene or during the complainant’s “sex assault kit.”

Even if a complainant makes an allegation of sexual assault that they later withdraw, it’s up to the Crown Prosecutor to decide whether to pursue the charges against you. The complainant can be subpoenaed to appear in court, even against their wishes. If this is the case, given the severity of the offence, it is likely that the Crown will pursue charges.

After you have been charged, police will provide a package with all the evidence they collected, known as the “disclosure package,” to the Crown Prosecutor. You will have the right to access this disclosure package to see the evidence against you. Once you retain one of our lawyers, we will assist you in obtaining the disclosure package, and we will review it with you to assess the strengths and weaknesses of the Crown’s case, as well as any legal defences that may be available to you.

Bail Process and Conditions for Sexual Assault Charges in Victoria

How do I get myself or a loved one out on bail for sexual assault charges in Victoria?

For most common sexual assaults, it is not uncommon for police to release you at the scene on a release order. Police will provide you with a release document outlining your charges, and any appearances you must make. This document may also include conditions that you are required to follow while on release.

However, a formal bail hearing may be required to secure your release, particularly if you have a criminal record or if the allegations are more serious (such as arising out of a domestic situation, or involving children).

The bail hearing must be held within 24 hours, a period that starts from the moment of arrest or detention rather than the time when you are brought to the district office or Courthouse.

On a weekday, you will be transferred from the district office to the Victoria Courthouse for your bail hearing.

The address of the Courthouse is as follows:

Victoria Courthouse
850 Burdett Ave
Victoria, BC V8W 1B4
(250) 356-1478

Loved ones are not able to contact you while you are detained. The police will not release any information to friends or family due to privacy laws. Your lawyer is the only person allowed to contact you. Once the police have verified your lawyer’s details, they will pass on information about your whereabouts, if requested.

Because of these difficulties, while you are held in custody, it is best to appoint a competent defence lawyer as soon as possible to manage the legal processes and communicate with loved ones. After an arrest, the police must provide you with the opportunity to call a lawyer in private and, if that happens, stop questioning you.

Once you retain one of our experienced criminal defence lawyers, we will begin working to secure your release on bail.

We will immediately do the following:

1. Call the district office where you are being held, or the Victoria Courthouse if you have been transported, and speak to you.
2. Contact the Prosecutor assigned to the bail hearing to start negotiating your release.
3. Order and secure a copy of the police information package that details the allegations against you in advance of the bail hearing. This allows the lawyer to make meaningful representations to the court about why you should be released on bail.
4. Conduct either an in-person or teleconference bail hearing to secure your release.

When you attend your bail hearing, the Judge will consider:

• Is detention necessary to secure your attendance in court?
• Is detention necessary to protect the public from a substantial risk of re-offence?
• Is detention necessary in all the circumstances to maintain confidence in the administration of justice?

Although it is unlikely that you will be denied bail for this type of charge, tight restrictions may nevertheless be applied to your release.

Rest assured, we will work to not only secure your release but also to ensure the least restrictive set of bail conditions (including the minimum cash deposit).

In order for our lawyers to secure less stringent conditions, the Judge will need to be satisfied that you will attend court as required and that you pose no significant risk of harm to the public. This may sometimes be difficult in sexual assault cases, but not impossible.

Our lawyers are often successful at persuading the Prosecutor in charge of bail to let our clients out. If we can’t convince the Crown, we can conduct a formal bail hearing and work to convince the Court. Even if you are ultimately detained, we can appeal that decision on very short notice through a bail review, which is conducted at the Supreme Court of British Columbia.

Where can I pay for bail for sexual assault charges in Victoria?

If you or a loved one are charged with sexual assault in Victoria and granted bail, you may be required to provide a cash deposit to secure release. The cash deposit can be paid at any bail hearing office (courthouse) in British Columbia. If you live in Vancouver, you can pay bail there for someone detained in Victoria.

The Victoria court registry is open from 8:30 – 4:30, Monday to Friday.

The contact details of the registry office at the Victoria Courthouse are as follows:

Victoria Courthouse
850 Burdett Ave
Victoria, BC V8W 1B4
(250) 356-1478

To pay your own bail, you can make a payment after your hearing, assuming you have sufficient funds with you to do so.

How do I change my release conditions for sexual assault charges in Victoria?

Release on bail with sexual assault charges will almost always require a surety, cash, or no-cash deposit.

Furthermore, you can expect tight restrictions, including conditions to refrain from:

• Interacting with the alleged victim,
• Attending the alleged victim’s home or place of work,
• Staying out beyond a certain time (i.e. curfew),
• Breaking any laws,
• Using drugs or alcohol,
• Possessing weapons,
• Visiting certain places, and/or
• Travelling.

Some of these conditions can prove to be difficult, especially where an alleged victim is a family member of yours or a child. If you share a home with the alleged victim, you are unlikely to be allowed to return home until the matter is addressed again in court.  Even if you are paying the rent, are on the lease, or own the home outright. A competent defence lawyer will address this challenge immediately.

The Judge may also impose some additional conditions such as:

• Residing where approved,
• Reporting to probation,
• Attending counselling, and/or
• Maintaining or seeking employment.

A variety of factors will be considered when determining your precise restrictions, including:

• Your criminal history,
• Your physical and mental condition,
• Your history of drug/alcohol usage,
• The nature of the alleged sexual assault,
• The likelihood that you will flee,
• Whether you have stable employment,
• Whether you have stable living arrangements, and
• Whether you have ties to the community.

If you have already been released, at least for the short term, it is critical that you make arrangements to abide by your conditions until they can be changed. Breaching the terms of your release can result in further charges or a revocation of your bail, as well as a forfeiture of any cash paid to secure your release. It is important to take these conditions seriously.

Once the matter is in court, we can work with the Crown Prosecutor to alter your conditions. This includes either adding exceptions to some of the conditions or eliminating them altogether.

If your court date is far away and you cannot wait until then, we can arrange to have the matter dealt with sooner. Our first priority is always to stabilize your release conditions. That way, you will not feel pressured to plead guilty because of the restrictive terms of your release. Once the conditions are manageable and minimally intrusive to your daily routine, we can focus 100% of our attention on defending the case.

Penalties for Sexual Assault Charges in Victoria

The penalties for sexual assault offences can be devastating. Sentences for sexual assault, particularly if it includes oral sex or any penetration, include significant jail sentences that are often several years in length. Punishments vary depending on the individual circumstances of the offender, and the severity of the offence.

Sexual assault is a hybrid offence, which means that the Crown can elect to proceed by way of indictment or by summary conviction. This decision is made based on the circumstances of your case and will impact the severity of punishment that you are handed. Indictment is the more severe of the two.

For a common sexual assault conviction, you can expect:

• Indictment: Up to 10 years’ imprisonment or, if the complainant is under the age of 16, a minimum sentence of 1-year imprisonment and a maximum of 14 years;

• Summary: Up to 18 months’ imprisonment or, if the complainant is under the age of 16, a minimum sentence of six months and/or a $5,000 fine and a maximum of two years’ less a day.

Beyond any immediate jail and/or probation sentence you receive, you will also be ordered to register with the National Sex Offender Registry in accordance with the National Sexual Offender Information Registry Act (SOIRA).

As a registered sex offender, you will have to provide the police personal information including

• Where you live,
• What you drive, and
• What you do for work.

You will also be obligated to inform the police any time you

• Change your address or place of residence,
• Change employment or volunteer positions, or
• Travel internationally for more than 7 days.

A conviction for one sexual assault offence will result in a mandatory minimum 10-year SOIRA order, which can have significant and overwhelming consequences on your future.

Following a conviction for sexual assault, you may have trouble securing employment in the field of your choice. This is especially the case for roles that require interacting with children, the elderly, or other vulnerable sectors of society. The lifelong criminal record that results from a conviction can also hinder immigration and travel, and can cause child custody issues.

Therefore, even if you intend on accepting responsibility for this type of offence, it is critical to explore your options and consider all the possible penalties.

Rest assured, our lawyers will work hard to defend you so that you are not saddled with the consequences of a criminal conviction for sexual assault. Even if the deck is stacked against you, we can canvass a range of sentencing options with the Prosecutors to give you the best result possible. To learn more about potential non-criminal resolutions, please visit our Resolutions page, or read our FAQ on resolutions and other sentencing options.

Defending Sexual Assault Charges in Victoria

What are the best defences to sexual assault charges in Victoria?

With sexual assault charges, the defences that may be available to you depend on the facts of your case.

In general, the best defences are:

• Factual Innocence: This is usually the strongest defence because the facts and the evidence do not support you being there, applying force to the complainant without consent, or other basic elements of the offence. This could include:
  • Identity: In some circumstances you may be able to raise an identity defence. For example, authorities could have made a mistake in identifying you as the perpetrator. In order to effectively raise this defence, you may need corroborative evidence, such as an alibi to where you were at the time of the offence.
• No sexual contact: If you can challenge the mental or physical elements of the sexual assault, then you cannot be convicted. For example, if you did not touch the complainant in a sexual context, you cannot be convicted of sexual assault.
• Consent: If the complainant consented to the sexual touching, you cannot be convicted of sexual assault. It is important to remember that the complainant must have consented to all sexual touching at the time that the touching took place. Consent must be express – it cannot be implied. Consent cannot be granted if it is obtained by force, threats, fear, fraud, or the exercise of authority. It is important to note as well that you cannot consent to the infliction of intentional bodily harm.
• Honest but Mistaken Belief in Consent: If the complainant did not consent to the sexual touching, but you honestly subjectively believed that the complainant was consenting to the sexual contact, you cannot be convicted of sexual assault. This defence is a form of “mistake of fact.” There must be evidence of ambiguity or equivocality which shows that the mistaken belief was not based on willful blindness or recklessness as to the absence of consent.
• Violation of Constitutional Rights: The Canadian Charter of Rights and Freedoms sets out your rights before and after your arrest. If the police fail to abide by these rights, it could aid in your defence.

While the Crown must prove the elements of the offence beyond a reasonable doubt, you may bear some responsibility in raising certain defences at trial. The burden of proof remains high for this kind of prosecution. This means that there are many successful defence strategies that our experienced defence lawyers can take, depending on the circumstances of your case.

Even if you believe that you will be found guilty, it is important that you obtain a legal opinion about defences that may be available to you.

The availability and strength of any defence depends entirely on the specific facts of your case. Our lawyers have significant experience assessing the availability and strengths of various potential defences in sexual assault cases, as well as presenting any and all available defences to the Court at trial.

How can I help defend sexual assault charges in Victoria?

If you have been charged with sexual assault in Victoria, the following can help your lawyer build a strong defence:

• Provide your lawyer with a statement about what happened;
• Collect and maintain all documents and records about the event;
• Gather a list of witnesses that may support your version of events; and
• Log any relevant texts, emails, phone calls or photographic evidence.

As soon as you are released on bail, you should start to gather any information that may be of use to your lawyer. If you are uncertain what information is relevant to your case, you should contact one of our lawyers immediately to create a plan of action.

If you are truly proactive about the matter, consider doing the following:

• Secure proof of employment;
• Secure reference letters;
• Enroll in counselling (anger management/substance abuse/parenting);
• Secure a record of prescriptions; and
• Secure a record of any mental health conditions you suffer from.

These steps can be very helpful for building an effective defence (or convincing the Prosecutor to drop the charges altogether).

What can a lawyer do to help me defend against sexual assault charges in Victoria?

As we start preparing your defence by examining police actions and the evidence against you, there are certain defence strategies that can be used to aid your cause, including:

• Assembling documents, photographs, texts, etc. that contradict the allegation and support your defence;
• Gathering evidence from witnesses that support your version of events;
• Identifying mistakes in the actions of the police, such as Charter breaches;
• Uncovering administrative/systemic errors such as “Jordan delay,” non-disclosure, lost or destroyed evidence, etc.; and
• Finding weaknesses or “holes” in the Crown’s case that may make it difficult or Impossible for them to establish the elements of the offence.

In the case of sexual assault defence, there are numerous other considerations that your lawyer will need to take into account that are unique to this kind of charge. Rest assured, we are up to the challenge.

Further Reading

Below are a few notable cases dealing with various aspects of sexual assault charges:

In R v Ewanchuk, [1999] 1 SCR 330 the Supreme Court of Canada considered the elements of the offence in sexual assault prosecutions. The Court determined that there does not exist a defence of “implied consent” in sexual assault prosecutions, as consent must be demonstrated to have subjectively existed in the mind of the complainant at the time of the sexual touching.

In R v Chase, [1987] 2 S.C.R. 293 the Supreme Court of Canada considered the question of what constitutes sexual touching for the purpose of a sexual assault allegation. The Court determined that the sexual nature of the touching is determined by considering whether objectively, in light of all the circumstances, the sexual context of the assault would be visible to a reasonable observer. The Court noted that it is the context of the touching, not the touching of a specific body part, that determines whether the assault was sexual in nature.

In R v Barton, 2019 SCC 33 the Supreme Court of Canada provided a comprehensive and sweeping treatise on the law of sexual assault in Canada. This case provides the most up to date analysis and guidance with respect to the prosecution and defence of a sexual assault allegation.

What’s Next?

Most of the information above relates to simple sexual assault cases, which can still be complex and fact specific. The circumstances of your case will likely further complicate the matter.

We have tried our best to provide a general outline of what you can expect if you find yourself in this situation, but this is just the tip of the iceberg.

To learn more about how we can help, please contact our team of Sexual Assault Lawyers. We will conduct a thorough review of your situation and tailor a precise strategy that targets your successful defence.

Sexual Offences FAQs

1. What is sexual assault?
2. What does consent mean?
3. What is child luring?
4. What is a child pornography offence?
5. What is voyeurism?

See More