Calgary Sexual Assault Lawyers You Can Count On

What is the next step after I’m charged with Sexual Assault?

In some cases, if you are arrested and charged the police officer can release you immediately under certain forms of release. It is not uncommon to have conditions associated with a release order. The most common conditions include no contact with the complainant and not attending any known residence or place of employment of the complainant.

In other instances, a formal bail hearing may be required. If this is the case, this means the accused person will be held until either a justice of the peace or the judge decides to release the accused person. The accused person has several options on how to proceed at this stage. If the accused person is arrested and held in Alberta, the bail hearing must be held within 24 hours but the bail office which is run province-wide only operates between 8 a.m. to midnight. The accused person will be offered the assistance of duty counsel but also has the option to retain private counsel to assist at this stage. The key considerations for the Judge or Justice of the Peace are:

1. Is detention necessary in order to secure your attendance at court?
2. Is detention necessary to protect the public from a substantial risk of re-offending?
3. Is detention necessary in all the circumstances to maintain confidence in the administration of justice?

In most cases, the onus to demonstrate that detention is necessary for any of the above rests with the prosecutor. However, in some instances, the onus may be on the accused person to demonstrate that detention is not necessary. All three grounds are applicable. This is one reason why having a smart and experienced lawyer at your side is so critical. Another reason for having a well-practiced lawyer at your side is to ensure that the conditions imposed if release is granted are workable and not too draconian. It is very common for an accused person to represent him or herself at the initial bail hearing stage and end up with a host of conditions that cause a variety of problems.

How much do I have to pay for my bail or release?

Bail doesn’t always require a cash deposit with the court system. There are many different ways an accused person can be released from jail in a bail hearing. The least restrictive way is called an undertaking without any conditions to follow.

An accused person can also be released on “promise to pay” (which is a “no cash bail” or “cash” bail. The difference between the promise to pay and cash bail is that in order to be let out of jail on cash bail, you will be required to post money upfront, which will be returned to the person who posted the money if the accused person does not break any of the release conditions. No money is required for posting if the release is on the promise to pay form, but money will be owing if the accused person breaks any of the imposed conditions. Additionally, the accused person will face further criminal charges of breaching bail conditions.

The most restrictive way (and less common method) to be released is with a surety. A surety is someone in your community who promises to supervise the accused person. This is a person of good character, who is close to the accused both in terms of relationship and physical location.

What are the most common defences for sexual assault?

The most common defences for sexual assault include the following:

• Identity: in some instances, identity may be the best defence. For example, the complainant and/or law enforcement may have made a mistake in identifying the accused person. In order for this defence to be successful, your skilled and competent lawyer may need corroborative evidence and will need to comply with evidence rules.
• Consent: if the trier of fact believes the complainant consented at the time of the incident or does not know who or what to believe about the issue of consent then the accused person may not be convicted. Consent in Canada must be expressed by action or verbally by the complainant at every stage of the sexual touching. It is important to understand that in certain circumstances the law has declared there can be no consent, these include:
• The person is unconscious;
• The person demonstrates any sign of non-consensual behaviour, i.e. doing or saying something to avoid a sexual activity;
• The person is only consenting because the other person is abusing a position of trust, power, or authority;
• Another person is consenting on the person’s behalf; or
• The person shows any sign of non-agreement after the sexual activity has already started.

The law also considers silence or passivity as a sign of non-agreement unless it is very clear from the person’s active participation and body language that they are in fact consenting.

• Honest but Mistaken Belief in Communicated Consent: if the complainant did not consent but the accused honestly believed that the complainant was consenting then the accused cannot be convicted of sexual assault. However, your sharp and experienced criminal lawyer must ensure the test of air of reality is met in order for this defence to be raised. An air of reality must be met that the accused took reasonable steps to ensure the complainant was consenting. If this test is met, then if there is evidence that indicates some ambiguity and the belief was not based on recklessness or willful blindness then the accused cannot be convicted.

At some point, the primary investigating officer will try to obtain evidence from the accused individual. This typically entails the accused person being contacted by the officer where the officer will explain what he’s investigating and inviting the accused person to share his or her side of the story. At this stage, the accused person is under no obligation to comply with the request. It is important to speak to an experienced and capable criminal lawyer to understand the ramifications of this request. In some cases, the lawyer will give summary advice. In other cases, it may be best to engage in a pre-retainer with a criminal lawyer. If you have been contacted by a police officer and are unsure what you should do, more information can be found here.

How will my lawyer prepare for a sexual assault trial?

Experienced trial lawyers who defend these types of allegations must strategically build a defence case that will not only persuade the trier of fact to find the accused not guilty but will allow for a line of analysis that the judge will follow and apply. This begins by scrutinizing every aspect of the police information and complainant statement. The lawyer needs to understand the accused’s version of events and any other potential defence witness and then to build an argument that contains these versions in order to apply the law to the facts as the lawyer insists happened. The well-practiced defence lawyer must also ensure all rules of evidence are complied with and must be strategic to ensure inadmissible evidence is not raised by the prosecutor.

As soon as the accused person is released from police custody, he or she should meet with their lawyer and provide any relevant information in their possession to the lawyer. For example, text messages, photographic/video evidence and or any other evidence that supports the accused person. There are steps that the accused person can take which will help the lawyer build the case and also potentially convince the prosecutor to drop the charges.