The most common defence to sex offences is either that the accused did not commit the alleged act or that the accused reasonably believed the other party consented to the act in question. Where the offence involves an underage person, consent is not a defence, as the Criminal Code provides that an underage person is legally incapable of consenting to sexual activity; however, special rules apply to sexual activity or sexual touching between two individuals under the age of 14 as well as between an individual under the age of 16 and an individual who is less than five years older. In addition, the accused’s belief that the other party was 16 or older can be a defence if he or she took all reasonable steps to ensure the other party was 16 or older and he or she was not in a position of authority or trust relative to the underage person.
In most sexual assault or sex offence trials, the credibility of the accused and the complainant is an important issue. In the absence of physical evidence and testimony from other witnesses, a trial can literally become a “he says, she says” affair. Finally, other defences based on breaches of the accused’s rights under the Charter of Rights and Freedom can play a role depending on the circumstances.
Sexual assault and sex offence trials are further complicated by rules that prohibit defence counsel from certain lines of questioning at trial. Subject to very limited exceptions, the popularly known “rape shield” amendments to the Criminal Code prevent defence counsel from questioning a complainant about her sexual history.
Suffice it to say that defending a sexual assault or sex offence case is challenging. An accused person who goes without expert guidance from experienced criminal defence counsel, even in the earliest stages of a case, risks doing serious damage to his or her defence.