Five Ways to Defend Sexual Assault Cases Now

Blog by Arun S. Maini

How are you supposed to defend against an allegation of sexual assault nowadays?

“When life gives you lemons, make lemonade”. That cute (and sometimes annoying) saying is one way to respond to the limits that have been imposed on the defence in sexual assault cases.

The government has systematically made the defence of sexual assault cases harder by abolishing the preliminary inquiry; limiting jury challenges; requiring the defence to disclose its evidence, and increasing penalties upon conviction. Plus the politics and scrutiny of sexual assault cases have made it much more difficult these days to avoid conviction and be sent to jail.

However, in the hands of an experienced sexual assault lawyer, these limitations do not need to prevent you from having your case judged fairly and fully.

Here are five important ways that even in today’s challenging legal and political environment, a defendant facing sexual assault charges can stand a fighting chance of maintaining their innocence.

I hear that preliminary hearings in sexual assault cases have been abolished. How can my lawyer make up for that?

The preliminary hearing was the single most important tool a defence lawyer had to build a successful defence for trial. So the government took it away.

The preliminary hearing, or “prelim” for short, permitted your lawyer to question your accuser and other witnesses, and to clarify and confirm their evidence. The police often take the easy route and only ask a few basic questions of the complainant. There are so many important details that are left out, details that are critical to determining your guilt or innocence. Your lawyer used to be able to ask those questions in a setting where you are not on trial, and get the answers needed to build your defence.

Now that prelims have been abolished in these cases, your lawyer has much less of an opportunity to build your case, but all is not lost. An experienced trial lawyer can still make use of the cross-examination at trial to advance your defence and to confirm, clarify and confront your accuser’s evidence. The route to a Not Guilty verdict is tougher and more perilous, but as long as your lawyer has the knowledge and experience to listen, think and react quickly in a rapidly unfolding environment, you will still have a solid defence and a real chance at a successful outcome.

I hear that the decisions of judges in sexual assault cases are being watched and scrutinized more than ever. How can I avoid a conviction?

First, while judges are under more pressure than ever, they are still required to be fair and objective. Nevertheless, if you are concerned about the pressure to convict, and your case allows for it, there is one option that can make all the difference.

Pick a trial by jury.

A jury of twelve regular citizens will bring all of their life-experience and common sense to the courtroom, and will decide the case free from the pressures that judges are under. Unlike a judge, a juror only decides one case, and does not have to give written reasons. Plus, a jury has to be unanimous to find you guilty, meaning that all twelve have to agree on the verdict. With a judge, it only takes one.

Ok, so I chose trial by jury, but apparently my right to participate in jury selection has been taken away by the government. How am I supposed to pick a fair and impartial jury to judge my case?

Yes, the government has abolished the system of peremptory challenges whereby you could choose to keep or reject certain jurors. That process helped to build a more balanced jury for your case. Nowadays, your jury will be composed of basically the first twelve people who are randomly chosen. However, there are still ways that your lawyer can build in some flexibility to make sure your jury is a fair and balanced one.

An experienced jury trial lawyer will know how to read a jury panel list, and how to work within the system to try to ensure a fair and impartial jury. There are certain challenges that can be brought, especially if you are a member of a racialized minority. In addition, the judge still retains the power to ask questions and to dismiss potential jurors.

Through careful advocacy, your lawyer can enlist the judge in the quest for an impartial jury by requesting that the court ask questions about the juror’s occupation, and clarify any biases or potential conflicts of interest. It does not provide the certainty that a peremptory challenge used to do, but it makes the best of the situation. Keep in mind that juries in Canada are very good at judging cases fairly and impartially. They take their job seriously, and perform it with integrity. With a jury, your case will be in good hands. With an experienced lawyer to guide you, even better.

I hear that as a defendant, I now have to disclose my evidence and strategy to the Crown and my accuser before trial. How is that fair?

It is true that the landscape has changed drastically and that your rights as a criminal defendant now have to be balanced against the rights of the complainant, who now has been given a new and important role to play in your case.

It is no longer possible to confront your accuser in court with evidence that shows that they are lying, such as text messages, emails or other documents. You have to disclose that evidence and explain your legal strategy to the Court, the Crown and even to your accuser well before the trial starts. And the complainant will even be given a lawyer paid for by the state to make submissions against using that evidence at trial.

However, the requirement to present and explain that evidence also provides a new opportunity for your lawyer to expose the frailties of the case and the Crown’s evidence, including that of the complainant, to the judge before trial. Think of it as a way for your lawyer to make final arguments about your innocence to the judge, in writing, before the trial even starts. In the hands of an experienced and skillful trial lawyer, those arguments can be highly persuasive and set the tone for the trial by highlighting the weaknesses of the Crown’s case early and often.

So those are four reasons to remain optimistic. What is number five?

Your lawyer, especially a knowledgeable and experienced one, can prepare and present effective arguments and evidence on your behalf.

But so can you.

You have a very important decision to make in every criminal trial, and that is whether you take the witness stand to testify in your own defence. In a sexual assault case, where it is often only the word of you against your accuser, your testimony can make all the difference. There are legal rules for deciding guilt and innocence that can be very favourable if you testify.

As a result of all the changes to the law that make defending sexual assault cases so difficult these days, your testimony as the defendant is now more important than it ever was. Properly prepared and presented, it can make up for all of the barriers and challenges that the government has placed in your way.

The key is preparation. It is not enough to take the stand and tell the truth. How you say it can be as important as what you say. An experienced trial lawyer can help prepare you to testify to ensure that your evidence is given its full weight and stands out among all of the evidence that has been presented against you. One method, that we at The Defence Group highly recommend, is a rehearsal of your testimony and cross-examination, prepared and conducted by our colleagues in a mock trial setting. There is nothing better to put you at ease and deliver your testimony fluidly and effectively. It will help identify and solve problems before you take the stand, and ensure that the Crown cannot turn your own words against you.

The confidence, peace of mind and power of persuasion that comes with proper preparation will give you the best chance to overcome all of the challenges that the recent changes to the law have placed in your way.

Arun S. Maini at the Defence Group has been a criminal lawyer for over 25 years. If you or a loved one are facing sexual assault or any other criminal charges and need the advice of an experienced and skilled lawyer to help you through the legal process, call The Defence Group for a free consultation at 877-295-2830 or email us through the Contact Us link throughout our website.