Sexual assault cases in Canada hinge on the strength of evidence presented by both the prosecution and defence. Understanding what evidence is viable can be critical to securing a conviction or acquittal.
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 While 267 defendants were acquitted, another 3,890 had their charges stayed or withdrawn.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.
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 two other, more severe levels of sexual assault add these parameters:
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 .
Q. What is the most important evidence in Canadian sexual assault cases?
A. In Canadian sexual assault cases, victim testimony is often the most crucial evidence, but physical evidence such as DNA, electronic communications, and witness testimony can strengthen or challenge the case.
“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:
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:
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.
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.
