Defences Against Sexual Assault Charges in Calgary

Step-by-Step Legal Process for Sexual Assault Cases

1. Initial Complaint and Police Investigation

The process begins when an individual reports a sexual assault to the Calgary Police Service (CPS). This can be done at a police station, by calling 911, or through CPS’s online reporting system in certain cases.

• How Complaints Are Reported and Investigated:
  After the initial complaint, officers will gather details and open a formal investigation. This often includes taking statements from the complainant, potential witnesses, and the accused.
• Collection of Evidence:
  Investigators may collect various forms of evidence, such as:
  • Medical examination reports (SANE kits).
  • Forensic evidence (DNA, fingerprints).
  • Digital evidence (text messages, emails).

The thoroughness of this stage is crucial, as it lays the groundwork for potential charges.

2. Arrest and Bail Hearing

If sufficient evidence supports the complaint, the police may arrest the accused.

• What Happens After an Arrest:
  After the arrest, the accused is informed of their rights, including the right to a criminal defence lawyer in Calgary. The accused is usually taken into custody and may remain there until a bail hearing.
• The Bail Hearing Process:
  A bail hearing typically takes place within 24 hours of the arrest. In Calgary, this is conducted at the Calgary Courts Centre. The judge determines:
  • Whether the accused should be released.
  • The conditions for release (e.g., no contact orders, curfews, travel restrictions).

If bail is denied, the accused remains in custody until trial or further hearings.

3. Laying of Charges and First Court Appearance

The Crown Prosecutor decides if there is enough evidence to formally lay charges.

• Understanding the Formal Charges:
  The charges are read to the accused during the first court appearance. This step is critical, as it sets the legal process in motion.
• Role of the First Court Appearance:
  During this appearance, the accused is informed of the charges, and options for plea (guilty or not guilty) are discussed. If the accused pleads not guilty, the case proceeds to the next stages.

4. Disclosure of Evidence

• Prosecution’s Duty of Disclosure:
  The Crown must provide the defence with all relevant evidence, including:
  • Police reports.
  • Witness statements.
  • Forensic evidence.
• Reviewing Evidence with Your Lawyer:
  A criminal defence lawyer in Calgary will thoroughly review the disclosure to identify weaknesses in the prosecution’s case and formulate defence strategies.

5. Pre-Trial Motions and Hearings

Pre-trial motions are legal requests or arguments made before the trial begins.

• Charter Applications:
  If the defence believes the accused’s Charter rights were violated (e.g., unlawful search, improper questioning), they may file applications to exclude certain evidence.
• Seeking to Exclude Evidence or Dismiss Charges:
  Your lawyer may argue to have evidence thrown out or the charges dismissed if procedural errors occurred.

6. Preliminary Inquiry (If Applicable)

For serious sexual assault cases, a preliminary inquiry may occur.

• Determining Evidence for Trial:
  The preliminary inquiry helps the court decide if there is enough evidence to proceed to a full trial.
• Role of the Preliminary Inquiry:
  This stage acts as a filter for weak cases and provides an early look at the evidence, allowing the defence to better prepare.

7. Trial Process

The trial is where the evidence is fully examined, and a verdict is reached.

• Jury Trial vs. Judge-Only Trial:
  In Calgary, the accused may choose between a jury trial (for more serious cases) or a judge-only trial.
• Presentation of Evidence:
  • The Crown presents its case first, including witness testimonies and evidence.
  • The defence can cross-examine witnesses and present its own evidence.
• Defence Strategies:
  Your lawyer may argue mistaken identity, consent, or question the reliability of the evidence to establish reasonable doubt.

8. Verdict and Sentencing

After the trial, the court delivers a verdict.

• Possible Outcomes:
  • Acquittal: The accused is found not guilty.
  • Conviction: The accused is found guilty.
  • Dismissal: The charges are dropped due to lack of evidence or procedural issues.
• Sentencing Guidelines:
  If convicted, sentencing considers factors such as:
  • The severity of the offence.
  • Aggravating or mitigating circumstances.
  • Impact on the victim.

Sentences may range from probation and fines to lengthy imprisonment.

Legal Rights of the Accused in Calgary

When facing sexual assault charges in Calgary, the accused has specific legal rights designed to ensure fairness and protect individual liberties. These rights are enshrined in the Canadian Charter of Rights and Freedoms and are fundamental to the justice system. Understanding these rights can help the accused navigate the legal process effectively with the assistance of a qualified Calgary criminal defence lawyer.

Right to a Fair Trial

In Calgary, every individual accused of a crime, including sexual assault, has the right to a fair and public trial. This right ensures that:

• Presumption of Innocence: The accused is presumed innocent until proven guilty beyond a reasonable doubt.
• Impartial Judge or Jury: The trial is conducted by an impartial judge or, in more serious cases, a jury.
• Timely Proceedings: The accused has the right to be tried within a reasonable timeframe, as delays can violate the right to a fair trial.
• Presentation of Evidence: Both the prosecution and defence can present evidence, call witnesses, and cross-examine the opposing side’s witnesses.

A fair trial ensures that the legal process in Calgary upholds justice and integrity, giving the accused every opportunity to defend against the charges.

Right to Legal Counsel

The right to legal counsel is fundamental for anyone accused of sexual assault in Calgary. This right guarantees that:

• Access to a Lawyer: Upon arrest, the accused has the right to speak to a lawyer without delay.
• Legal Advice: The accused can seek advice on how to respond to police questioning and the steps to take throughout the legal process.
• Duty Counsel Services: If the accused cannot afford a lawyer, free legal assistance is available through duty counsel, provided by Legal Aid Alberta.
• Right to Counsel During Proceedings: The accused can have a lawyer present during interviews, court appearances, and throughout the trial.

Having an experienced Calgary criminal defence lawyer can make a significant difference in navigating the complexities of sexual assault cases.

Right to Remain Silent

The right to remain silent is a critical protection for the accused during a sexual assault investigation in Calgary. This right includes:

• No Obligation to Speak: The accused is not required to answer questions from the police or Crown prosecutors.
• Avoiding Self-Incrimination: Anything the accused says may be used as evidence, so exercising the right to remain silent can protect against self-incrimination.
• Informed of This Right: Upon arrest, police are legally required to inform the accused of their right to remain silent and to consult with a lawyer.

The accused can assert this right at any point during the investigation or trial, and doing so cannot be used as evidence of guilt.

Protection from Unlawful Search and Seizure

Under the Canadian Charter of Rights and Freedoms, individuals in Calgary are protected against unlawful search and seizure. This right ensures that:

• Warrants Are Required: Police generally need a search warrant issued by a judge to search the accused’s property, electronic devices, or personal belongings.
• Limits on Police Powers: Searches conducted without a warrant must meet strict legal standards (e.g., exigent circumstances) to be valid.
• Exclusion of Evidence: If evidence is obtained through an unlawful search, a defence lawyer may file a Charter application to have that evidence excluded from trial.

This protection helps safeguard the privacy rights of individuals accused of sexual assault in Calgary and ensures that law enforcement follows proper legal procedures.

Defences Against Sexual Assault Charges in Calgary

1. Consent

Consent is one of the most common and powerful defences in sexual assault cases in Calgary.

• Definition of Consent:
  In Canadian law, consent is defined as the voluntary agreement to engage in sexual activity. The consent must be given by a person who is capable of understanding the nature of the act. It must also be continuous, meaning it can be withdrawn at any point.
• Establishing Consent as a Defence:
  To use this defence, the accused must show that the complainant consented to the sexual activity at the time it occurred. Evidence supporting consent can include:
  • Text messages or emails.
  • Witness testimonies.
  • Behaviour and context leading up to the incident.
• Limitations on Consent:
  Consent is not valid if it was obtained through:
  • Coercion or threats.
  • Fraud or deception.
  • The complainant was incapacitated (e.g., due to alcohol, drugs, or unconsciousness).

A knowledgeable Calgary criminal lawyer can help gather and present evidence to establish consent effectively.

2. Mistaken Belief in Consent

Another potential defence is a mistaken belief in consent. This defence applies when the accused genuinely, albeit mistakenly, believed that the complainant had consented to the sexual activity.

• Proving an Honest but Mistaken Belief:
  To succeed with this defence, the accused must show that:
  • They honestly believed consent was given.
  • This belief was reasonable based on the circumstances.
  • They took reasonable steps to ascertain consent.
• Exclusions to This Defence:
  The defence of mistaken belief in consent cannot be used if:
  • The belief was due to the accused’s self-induced intoxication.
  • The accused was wilfully blind or reckless about whether consent was given.

This defence requires meticulous analysis of communication and interactions, which a Calgary sexual assault lawyer can help dissect and present.

3. Credibility and Reliability of Witnesses

In many sexual assault cases, the outcome heavily depends on the credibility and reliability of witness testimonies, including the complainant’s statements.

• Challenging Inconsistencies:
  Defence lawyers often scrutinize witness statements to identify:
  • Contradictions between different statements.
  • Discrepancies between statements and physical evidence.
  • Delays in reporting the incident or changes in the account over time.
• Cross-Examination:
  During the trial, the defence can cross-examine witnesses to highlight:
  • Memory lapses or inconsistencies.
  • Possible motives to fabricate or exaggerate claims.
  • Bias or prior relationships that may influence testimony.
• Expert Witnesses:
  In some cases, expert witnesses may be called to challenge the reliability of forensic evidence or psychological factors influencing memory.

A skilled Calgary defence lawyer can effectively challenge witness credibility, potentially weakening the Crown’s case.

4. Alibi Defence

An alibi defence involves proving that the accused was elsewhere when the alleged sexual assault took place.

• Providing Evidence of Alibi:
  To establish an alibi, the accused must present evidence showing they could not have committed the alleged offence. This evidence may include:
  • Testimonies from witnesses who saw the accused at a different location.
  • Receipts, security footage, or digital records (e.g., GPS data, phone records) confirming the accused’s whereabouts.
• Disclosure Requirements:
  The defence must disclose the intention to use an alibi to the Crown before the trial. Failure to do so can result in the alibi evidence being excluded.
• Strength of the Alibi:
  A strong, corroborated alibi can significantly undermine the prosecution’s case and may lead to an acquittal.

FAQs About Sexual Assault Cases in Calgary

1. What Should I Do if I’m Accused of Sexual Assault?

If you are accused of sexual assault in Calgary, it’s crucial to take immediate steps to protect your rights:

1. Remain Calm: Do not panic or engage with the complainant.
2. Exercise Your Right to Silence: You are not required to provide statements to the police or anyone else. Anything you say can be used against you.
3. Contact a Lawyer Immediately: Consult a Calgary sexual assault defence lawyer as soon as possible. They can guide you on how to proceed and represent you during police questioning.
4. Avoid Contact with the Complainant: Do not attempt to contact the complainant directly, as this could be seen as intimidation or harassment.
5. Gather Evidence and Witnesses: If possible, collect evidence that may support your defence, such as text messages, emails, or potential alibis.

Having a lawyer by your side ensures that you navigate the legal process correctly and avoid unintentionally incriminating yourself.

2. How Long Does a Sexual Assault Case Take to Resolve?

The length of a sexual assault case in Calgary can vary depending on several factors:

1. Investigation Phase: Police investigations can take anywhere from a few weeks to several months.
2. Court Process: After charges are laid, the case can take anywhere from 6 months to 2 years to reach resolution. The timeline depends on:
   • The complexity of the case.
   • The availability of court dates.
   • Whether the case goes to trial or is resolved through a plea agreement.
3. Pre-Trial Motions and Delays: Pre-trial motions, such as Charter challenges or evidence disclosure disputes, can extend the timeline.

Your lawyer can give you a more accurate estimate based on the specific details of your case and the current scheduling within the Calgary Courts Centre.

3. Can Charges Be Dropped Before Trial?

Yes, sexual assault charges can be dropped before trial, but this depends on the circumstances of the case. Possible reasons for charges being withdrawn include:

1. Insufficient Evidence: If the Crown Prosecutor determines that there isn’t enough evidence to support a conviction, they may drop the charges.
2. Credibility Issues: If new evidence emerges that undermines the credibility of the complainant or key witnesses, the Crown may reconsider the prosecution.
3. Charter Violations: If your lawyer successfully argues that your Charter rights were violated (e.g., unlawful search, improper questioning), this can lead to charges being dismissed.
4. Resolution Agreements: In some cases, alternative resolutions or restorative justice measures may result in charges being withdrawn.

An experienced Calgary defence lawyer can advocate for the withdrawal of charges based on the strength of your defence and procedural issues.

4. What Are the Penalties for a Sexual Assault Conviction in Calgary?

The penalties for a sexual assault conviction in Calgary are severe and depend on factors such as the nature of the assault, the use of force, and the presence of aggravating factors. Sentencing guidelines under the Criminal Code of Canada include:

1. Summary Conviction:
   • Maximum penalty: 18 months in prison.
   • May apply to less serious cases.
2. Indictable Offence:
   • Maximum penalty: 10 years in prison for a basic sexual assault.
   • If the complainant is under 16 years old, the penalty increases to 14 years with a mandatory minimum of 1 year.
3. Aggravating Factors:
   • Use of a weapon.
   • Threats of violence or causing bodily harm.
   • Breach of trust (e.g., teacher, coach, caregiver).
4. Additional Consequences:
   • Mandatory registration as a sex offender.
   • Probation and community restrictions.
   • Impact on employment and travel.

Sentencing also considers mitigating factors such as a lack of prior criminal history and evidence of remorse or rehabilitation.