What Are The Potential Defences For Sexual Assault?

What Are The Potential Defences For Sexual Assault?

  • Factual Innocence:If the Crown is unable to prove the essential elements of the particular offence beyond a reasonable doubt, they will have failed to discharge their burden, and the accused will be acquitted.
  • Honest but Mistaken Belief in Consent: If the accused honestly believed the complainant was consenting, he would not have formed the requisite intent to be guilty of the offence. However, it is not a defence if the mistaken belief arose from:
    • The accused’s self-induced intoxication;
    • The accused’s recklessness or wilful blindness;
    • The accused did not take reasonable steps, in the circumstances know to him at the time, to ascertain that the complainant was consenting; or
    • There is evidence that the complainant’s voluntary agreement was affirmatively expressed by words or actively expressed by conduct.
  • Violation of Charter Rights: Under the Canadian Charter of Rights and Freedoms, individuals are afforded specific rights, including:
    • the right against unreasonable search and seizure;
    • the right to not be arbitrarily detained;
    • the right to be informed promptly of the reasons for arrest;
    • the right to retain and instruct counsel without delay; and
    • the right to be tried within a reasonable time.

A successful Charter challenge may also result in a stay of proceedings, or evidence from your case being excluded.



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