May 23, 2023
Credibility in Criminal Cases
How Do Courts Determine Guilt in Cases with Competing Versions of Events?
It is the Crown’s obligation in every criminal trial to prove the accused is guilty beyond a reasonable doubt. This can be a difficult task for juries to figure out, especially in cases where there are two competing versions of events, one from the complainant and the other from the accused, and little or no supporting evidence for either side.
How should juries determine the accused’s guilt or innocence when two witnesses provide different versions of events?
The Supreme Court of Canada’s Guidance: R v. W.D.
In R v. W.D.,  1 SCR 742, the Supreme Court of Canada provided guidance to trial courts about how to assess competing accounts. In that case, the accused, a 42-year-old man, was charged with sexually assaulting his 16-year-old niece. Aside from the niece’s testimony of the event, there was little circumstantial evidence supporting the allegation. The accused denied committing the offence. The trial judge instructed the jury that they must decide whether to believe either the accused or the complainant. In the result, the jury found the accused guilty.
On appeal, the accused took issue with how the trial judge instructed the jury about how to resolve the competing evidence. The Supreme Court of Canada held the instruction was improper and set out a test to apply in these types of situations.
The Test for Assessing Competing Accounts
At the first stage, if the jury believes the evidence of the accused, then the accused must be acquitted (found not guilty).
At the second stage, if the jury does not believe the testimony of the accused, but is left in reasonable doubt by it, then they must acquit the accused. In other words, if the accused’s evidence makes the jury question (to a reasonable degree) whether or not the accused is guilty, then the accused must be acquitted.
At the third stage, even if the jury is not left in doubt by the evidence of the accused, then that does not necessarily mean the accused is guilty. If the accused is not believed and his evidence does not raise a doubt, then the jury must ask themselves whether they accept the evidence of the complainant beyond a reasonable doubt. If the answer is yes, then the accused must be found guilty. If the answer is no, then they have a reasonable doubt based on the complainant’s evidence and the accused must be acquitted. In other words, it is not enough to simply reject the evidence of the accused in order to convict. It is also necessary that the jury accept the evidence presented by the Crown beyond a reasonable doubt, before the accused can be found guilty.
The BC Court of Appeal, in the case of R. v. C.W.H.,  BCJ No 2753 (BC CA), provided an additional fourth stage: if after careful consideration the jury cannot decide whom to believe, then they must acquit.
Conclusion: Focus on Burden of Proof, Not Preference for One Side Over Another
The W.D. and C.W.H. analysis is designed to prevent juries from listening to two competing versions and asking themselves “which version do I like better?” and picking their preferred version. It is not a question of which version they like better. The instructions outlined by the courts focus the jury on the right question, which in a criminal trial is always whether the Crown has proven the accused is guilty beyond a reasonable doubt.
If you are being investigated or charged with a criminal offence, contact the experienced lawyers at Filkow Law for legal assistance.
What are Crimes of Revenge?
Crimes of revenge are acts of violence or other illegal activities committed by an individual in response to a real or perceived wrong that has been done to them. These acts are often carried out with the intention of seeking retribution or revenge for the real or perceived injustice.
Revenge can be motivated by a variety of different acts, including the following:
● cheating, infidelity or adultery;
● being insulted, especially on the basis of race, gender, religion or sexuality;
● failing to repay a debt;
● economic competition;
● loss of business or clients;
● being treated unfairly at work;
● sabotage by a coworker or business partner;
● disclosure of a secret;
● jealousy or envy; and,
● family disputes over inheritance, property or children.
The type of revenge one takes can vary wildly. Here are some common examples of crimes of revenge:
● physical assault;
● mischief to property or vandalism;
● breaking and entering;
● distributing intimate images, also known as “revenge porn”;
● sending false communications;
● making false police reports; and,
In some cases, these crimes can escalate into more serious offences, such as murder or sexual assault.
Why do Crimes of Revenge Occur?
Crimes of revenge are often motivated by strong emotions, such as anger, jealousy, or vindictiveness. The offender may feel that the only way to achieve justice is through violent or illegal means.
In some cases, offenders may feel that the legal system has failed to provide them with the justice they seek, and therefore, they believe they must take the law into their own hands.
In other cases, societal and cultural factors may also play a role. For example, in some cultures, honour-based violence is used as a way to restore the family’s honour when it may have been compromised.
Regardless of the motive, there is no legal justification for a crime of revenge.
The Legal Defence of Provocation
There is a defence in the law of provocation, however, it only applies to a charge of first or second-degree murder. Provocation is a defence where the deceased person commits a wrongful act or insult that deprived an ordinary person of the power of self-control. Even then, it is only a partial defence that can reduce a verdict from murder to manslaughter.
Provocation is not a defence for any crime of revenge other than murder. This means that it is not a defence to say that an insult or wrongful act caused the offender to lose self-control and to commit offences of assault, theft or the distribution of intimate images, to cite a few examples. The context of an offence may reduce an offender’s moral culpability and therefore the sentence they receive; however, there is no special defence available for someone who has been accused of a crime of revenge.
Related: What is Aggravated Assault?
Crimes of revenge are taken very seriously by the Canadian legal system, and can result in severe penalties. Depending on the nature and severity of the offence, the offender may face imprisonment, fines, or other penalties.
If you are charged with or investigated for a crime of revenge, it is highly recommended that you hire a lawyer to defend your case. The experienced lawyers at Filkow Law regularly deal with all kinds of crimes of revenge. Contact us today for legal help.
Apr 20, 2023
Arson in the Criminal Code of Canada
What is Arson?
Arson is a serious offence in Canada, and it is one of the most severe forms of property damage. The Criminal Code of Canada defines arson as intentionally setting fire to property without the owner’s consent. The offence is taken very seriously by law enforcement agencies, and anyone found guilty of this crime can face significant legal consequences. Canadian law has several sections that deal with the offence of arson, each with its own set of circumstances and penalties.
Types of Arson in The Criminal Code of Canada
There are five different types of arson in the Criminal Code of Canada. They are located in sections 433 to 436:
- Arson with disregard for human life.
- Arson of property not wholly owned by the accused.
- Arson of property partially or wholly owned by the accused.
- Arson with the intent to defraud.
- Arson by negligence.
Punishment for Arson in Canada
Section 433 of the Criminal Code of Canada outlines the offence of arson with disregard for human life. The section states that anyone who intentionally or recklessly sets fire to property where either:
(a) the person knows that or is reckless with respect to whether the property is inhabited or occupied; or
(b) the fire or explosion causes bodily harm to another person.
is guilty of an indictable offence and can be sentenced to life imprisonment.
Section 434 of the Criminal Code of Canada deals with the offence of arson of property that is not wholly owned by the accused. This section applies where a person sets fire to property that the person themselves does not wholly own. The penalty for this offence is a maximum of 14 years imprisonment.
Section 434.1 of the Criminal Code of Canada creates an offence of arson of property that is owned wholly or in part by the accused. This section applies where a person sets fire to property that they themselves own and seriously threatens the health, safety or property of another person. It does not matter whether the accused knew the fire threatened the health safety or property of others. The maximum penalty for this offence is 14 years imprisonment.
Section 435 of the Criminal Code of Canada deals with arson committed with intent to defraud. This section applies when a person sets fire to their property or the property of another person with the intent to obtain insurance money or some other financial benefit. The penalty for this offence is a maximum of 10 years in prison.
Section 436 of the Criminal Code of Canada deals with arson committed by negligence in one’s own property. This section applies when a person negligently causes a fire on their property that damages another person or property. Negligence can be inferred by failing to comply with any law about the prevention or control of fires. The penalty for this offence is a maximum of five years imprisonment.
Use of Incendiary Material
Section 436.1 of the Criminal Code of Canada deals with possessing incendiary material for the purpose of committing arson. This section applies when a person simply possesses incendiary material, such as:
- magnesium; and
The penalties for arson vary depending on the circumstances. In general, the penalties for arson committed with intent to defraud or possessing incendiary material for the purpose of committing arson are less severe than the penalties for arson committed with disregard for human life or arson of another person’s property.
The Criminal Code of Canada has several sections that deal with the offence of arson, each with its own set of circumstances and penalties. Arson is a serious offence in Canada, and anyone found guilty of this crime can face significant legal consequences. If you are being charged with or investigated for a crime, contact the experienced lawyers at our office.
Related reading: check out our blog on the possible outcomes of a criminal charge in Canada.
What is a Police Warrant?
In Canada, police warrants are an important tool used by law enforcement officials to investigate and apprehend suspected criminals. A warrant is a legal document issued by a judge or justice of the peace that authorizes police officers to take certain actions, such as entering a property to search for evidence or to arrest an individual.
To obtain a warrant, police officers must demonstrate to a judge or justice of the peace that there are reasonable grounds to believe that an offense has been committed and that evidence or a person involved in the offense is likely to be found at a particular location. The judge or justice of the peace must be satisfied that the evidence is credible and reliable before issuing a warrant.
Types of Warrants in Canada
There are two types of police warrants in Canada: search warrants and arrest warrants. A search warrant allows police officers to enter a property and search for evidence related to a criminal offense. An arrest warrant authorizes police officers to arrest an individual suspected of committing a crime.
When executing a warrant, police officers must follow strict guidelines to ensure that the warrant is carried out lawfully. For example, they must identify themselves as police officers, provide a copy of the warrant to the person in charge of the property being searched, and provide a detailed inventory of any items seized during the search.
Can the Police Search You Without a Warrant?
It is important to note that police officers are not always required to obtain a warrant before conducting a search or making an arrest. In some circumstances, such as when an individual is caught in the act of committing a crime, police officers may be able to make an arrest without a warrant. Similarly, in emergency situations where there is an imminent threat to public safety, police officers may be able to conduct a search without a warrant.
However, in general, police officers are required to obtain a warrant before conducting a search or making an arrest. This requirement is designed to protect the rights of individuals and ensure that law enforcement activities are carried out in a lawful and appropriate manner.
If an individual believes that their rights have been violated during a police search or arrest, they have the right to challenge the legality of the search or arrest in court. This may involve arguing that the police did not have reasonable grounds to believe that a crime had been committed, that the warrant was obtained unlawfully, or that the police officers did not follow proper procedures when executing the warrant.
Related: Entrapment Law in Canada
Overall, police warrants are an important tool used by law enforcement officials in Canada to investigate and apprehend suspected criminals. While there are situations where police officers may be able to conduct a search or arrest without a warrant, the requirement to obtain a warrant in most circumstances helps to protect the rights of individuals and ensure that law enforcement activities are carried out in a lawful and appropriate manner.
If you are being investigated for a crime or believe there is a warrant out for your arrest, call the experienced lawyers at Filkow Law. Click here to contact us.
For more information on warrants in Canada, click here.
Mar 14, 2023
What Is An Aggravated Assault?
Aggravated assault is the most serious assault charge someone can face in Canada. It is an assault where the complainant was wounded, maimed, disfigured, or their life was endangered.
What is the difference between an assault and an aggravated assault?
All criminal offences are made up of elements (i.e., ingredients). The elements of an aggravated assault are the same as for a regular assault, but the result of the assault is different. With a regular assault, the complainant suffered no bodily harm and were not wounded, maimed, disfigured, or had their life endangered.
What is the legal definition of an assault?
The elements of an assault are that the accused intentionally or recklessly applied force to the complainant without the complainant’s consent. Assaults where the complainant suffered no bodily harm and were not wounded, maimed, disfigured, or had their life endangered are sometimes also referred to as “simple assaults”. For more information on simple assaults, click here.
What is an assault causing bodily harm?
Assault causing bodily harm is an upgraded version of assault. It has the same elements of assault, except the complainant suffered “bodily harm”. Bodily harm means the complainant suffered harm that was more than transient or trifling.
When does an assault become an assault causing bodily harm?
There is no clear dividing line between harm that is transient or trifling and harm that goes beyond that. In practice, BC prosecutors will charge an accused with assault if the complainant alleges they suffered no more than a few bruises or scratches.
If an assault resulted in bleeding, significant bruising, or lumps, BC prosecutors are more likely to charge the accused with assault causing bodily harm. If the complainant had concussion symptoms, that can also be charged as an assault causing bodily harm. The meaning of “bodily harm” includes brain injuries or psychological damage, as long as they are more than transient or trifling.
What is the difference between assault, assault causing bodily harm, and aggravated assault?
Aggravated assault has the same elements as assault, except the complainant was also wounded, maimed, disfigured, or their life was endangered.
The difference between assault, assault causing bodily harm, and aggravated assault is in the result (i.e., outcome) of the assault. The more the complainant was hurt by the assault, the more likely the accused will be charged with an upgraded version of assault (either assault causing bodily harm or aggravated assault).
Are there other upgraded versions of assault, apart from assault causing bodily harm and aggravated assault?
There are two other upgraded versions of simple assault, but the differences between them and a simple assault do not depend on the result of the assault. Instead, they depend on the circumstances of the assault. These are assault with a weapon and assault by choking.
An assault with a weapon is any assault where the perpetrator carried, used, or threatened to use a weapon. A weapon is any “thing”, as long as it was used to assault someone with. A weapon could be a shoe, a plastic cup, a piece of clothing… anything. If it’s a thing, it can be a weapon and meet the legal definition of “assault with a weapon” provided the thing was used as a weapon.
An assault by choking is any assault where the accused is alleged to have choked the complainant. It does not depend on the result of the assault, but on the act itself.
When do people get charged with aggravated assault?
Although there are four outcomes that meet the definition of aggravated assault (wounding, maiming, disfiguring, or endangering life), the outcome that will most commonly meet the definition of an aggravated assault is wounding. That’s because someone who was maimed, disfigured, or had their life endangered will typically also have been wounded.
In practice, BC prosecutors will charge aggravated assaults where the harm suffered by the complainant is alleged to have been broken bones, broken cartilage, cuts requiring stitches, or worse.
How does the law define “wounding”, “maiming”, and “disfiguring”?
The legal definition of wounding is “a break in the continuity of the whole skin that also constitutes serious bodily harm”. Serious bodily harm means “any hurt or injury that interferes in a substantial way with the integrity, health or well-being of the complainant”.
The legal definition of maiming is “to inflict an injury that deprives a person of the use of a limb or renders the victim less able to defend themselves.” This means that breaking someone’s bones or otherwise making them unable to use their body properly means the harm they suffered was enough to count as an aggravated assault.
The legal definition of disfiguring is “impairing or injuring the beauty, symmetry, or appearance of a person”. Although the word “disfigure” implies an injury to the face, a facial injury is not necessary for its legal definition. The injury must simply be persistent and harmful to a person’s appearance. That means the legal definition of aggravated assault can be met without breaking skin (no wound) or injuring bodily functions (no maiming) if it still harmed the victim’s long-term appearance (i.e., disfigured them).
How does the law define “endangering life” for the purpose of an aggravated assault?
There is no elaborate legal definition of “endangering life” for the purpose of an aggravated assault. This is a fact-specific question that will depend on the circumstances of each case.
One example where someone could be found guilty of aggravated assault despite neither wounding, maiming, or disfiguring the complainant is if they discharged a firearm near the complainant and the bullet missed. There would be no actual harm to the complainant, but the accused would have endangered their life.
Of course, if someone shoots somebody with a firearm, they could also be charged with the offence of discharging a firearm with intent to endanger life. However, for someone to be guilty of that offence the prosecutor must prove they intended to endanger life. An accused could be guilty of aggravated assault for discharging a firearm near a complainant, even if they never intended to endanger the complainant’s life. If the accused was reckless, that is enough. This means it is easier for a prosecutor to prove an aggravated assault than to prove the offence of discharging a firearm with intent to endanger life.
How does intention play a role in aggravated assault?
In general, the law does not criminalize acts that a person does not intend. For someone to be guilty of an assault, they need to have intentionally or recklessly applied force to another person. “Reckless” means they knew they might apply force to another person but took that risk anyway.
Upgraded versions of assault also require some intention with regard to the result of the assault. For someone to be guilty of aggravated assault, the complainant must not only have been wounded, maimed, disfigured, or had their life endangered, but a reasonable person in the accused’s shoes would have also foreseen the risk of inflicting bodily harm to the complainant.
This mental exercise can be confusing, but it is a very common legal test. We call it an “objective test”, which means that instead of asking whether the accused foresaw the risk of harm from their actions, we ask whether a reasonable person in their shoes would have foreseen the risk of harm from their actions. If the legal test were about what the accused actually foresaw (as opposed to a reasonable person in their shoes), then we would call it a “subjective test”.
So, there are two aspects to intention with aggravated assault:
- Intent regarding the assaultive act; and
- Intend regarding the result of the act.
For the assaultive act, the accused must have intentionally or recklessly applied force to the complainant. For the result of the act, a reasonable person in the accused’s shoes must have foreseen the risk of bodily harm from applying force to the complainant.
What should I do if I’m being charged with aggravated assault?
You should retain a lawyer right away. All violent offences are serious, but aggravated assault is the most serious assault charge in the Criminal Code that someone can face. The charge carries a maximum punishment of 14 years in jail. If you are guilty of aggravated assault, it is not possible to avoid a criminal record. Lengthy jail sentences are also common.
The lawyers at Filkow Law are experts at criminal law and have vast experience defending assault charges. We can help. Do not hesitate to call us right away.
Filkow Law has the pleasure of being voted a top-three Richmond Criminal Defence Lawyer and top-three DUI Laywer. Filkow Law has been serving a diverse community in the Richmond area for over 20 years. Lawyers and staff at the firm speak Mandarin, Cantonese, Punjabi, Russian, French, Serbian, Polish and German. The lawyers at Filkow Law specialize in criminal charges, driving cases, and ICBC cases.
Over the past decade, Filkow Law Richmond has been recognized for its expertise in multiple practice areas. Filkow Law has been voted the best law firm in Richmond for the past 8 years (2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021 and 2022). Filkow Law has consistently been voted as the top criminal and driving law firm in Richmond. Filkow Law was also rated one of the Top Three Richmond DUI Lawyers in 2021, 2022, and 2023. Filkow Law was also rated one of the Top Three Richmond Criminal Defence Lawyers in 2023.
Need A Criminal Defence Lawyer In Richmond? Call Filkow Law
Filkow Law is a highly regarded law firm with over 25 years of experience. Clients benefit from Filkow Law’s deep and broad knowledge and expertise of criminal law, driving law and the criminal justice and court system. Filkow Law is known for its skilled advocacy, its highly accessible culture, its signature strategic approach to every case, and the exceptional results achieved.
The lawyers at the firm have excellent reputations with the police, prosecutors and the courts across British Columbia. In addition to their courtroom skills, the lawyers at Filkow Law advocate for and achieve decisive victories away from the public eye, often before the criminal or driving case ever sees a day in court.
Filkow Law looks forward to continuing to deliver excellent outcomes for its clients. Please do not hesitate to contact any of the lawyers at the firm for a consultation.
Feb 01, 2023
Drug Offence Lawyers: Why You Need One
A drug conviction can have lifelong implications.
Drug related offences, particularly trafficking and possession for the purpose of trafficking, are some of the most heavily resourced police files. Police receive extensive training and are provided unlimited resources to utilize a variety of investigative techniques for drug cases. Some of these techniques include:
- Confidential informants
- Undercover officers
- Trafficking devices
The accused is often faced with a large amount of evidence against him/her. The drug case looks bad and the penalties and implications can be very serious.
Drug Offence Lawyers: Why You Need A Lawyer For A Drug-Related Offence
As drug cases in British Columbia have many layers, a wide variety of legal issues arise. It is important to go through all the evidence with a fine tooth comb and flush out the different issues.
Drug cases require strong preparation, excellent strategy, and more importantly, the right lawyer and legal team.
We have recently achieved some remarkable results for our clients with drug charges. Our extensive experience on drug cases has allowed us to develop specialized knowledge and a specific approach to handling these types of complex cases. If you need a drug offence lawyer in BC, call Filkow Law today.
Jan 23, 2023
Is Speeding In BC A Criminal Offence?
Everyone knows what speeding is, but did you know that Canadian law has held that speeding can also be charged as a number of other offences? Courts have held that speeding can also constitute Driving Without Due Care under the Motor Vehicle Act and even Dangerous Driving under the Criminal Code.
What Is Considered Speeding In BC?
This happens because both the federal and provincial governments have created offences that capture unsafe driving behaviour. This means the exact same driving behaviour can be charged as a provincial offence or a federal offence. For example, the Criminal Code prohibits the following driving behaviour:
- Criminal negligence in the operation of a motor vehicle;
- Driving while prohibited due to a Criminal Code conviction;
- Engaging police in a pursuit;
- Failing or refusing to provide a breath sample;
- Dangerous driving;
- Failing to stop after an accident;
- Impaired driving;
- Driving with a blood alcohol content over the legal limit (.08 BAC); and
- Driving with a drug blood concentration over the legal limit.
These same offences listed above could also be charged under the Motor Vehicle Act under the following offences:
- Driving without due care and attention;
- Driving without reasonable consideration for others;
- Excessive speeding;
- Following too close;
- Failure to stop for police when requested;
- Driving while prohibited under the Motor Vehicle Act;
- Failure to remain at the scene of an accident or otherwise comply with a driver’s duties after an accident; and
- Failing to yield to a pedestrian.
In addition to that, the Motor Vehicle Act also allows police to impose roadside driving prohibitions for failing to provide a breath sample, having any amount of alcohol in your blood, or if they discover that you are otherwise unable to drive.
Offences under either statute can result in significant and various consequences, including fines, driving prohibitions, insurance penalties or imprisonment.
Contact Filkow Law For Driving Law Offences
If you are charged with a criminal driving offence, you will need experienced legal counsel to help you navigate this specialized area of the law. The lawyers at Filkow Law have decades of experience in this area.
Dec 13, 2022
Sexual Assault FAQ: Consent Laws In Canada
The law of sexual assault in Canada can be surprising. If you polled members of the public about whether certain scenarios amount to sexual assault, many would wrongly guess that something that isn’t sexual assault is, or vice-versa. Here are five laws of sexual assault and consent law in Canada you should know.
Five Consent Laws In Canada
1. Consent must be continuous throughout the sexual activity
At first glance, this doesn’t seem like a surprising fact about the law of sexual assault. If someone consents to sex with another person, then revokes it partway through, the other person must stop having sex with them. Otherwise, the other person has committed a sexual assault. None of this is counterintuitive.
However, what if someone were to give advanced consent to having sexual acts performed on them while they’re unconscious? They could even have a particular sexual fantasy about having sex acts performed on them while sleeping, or about being woken up by a sex act.
It turns out that Canadian law still says that’s sexual assault. It’s simply illegal to perform a sexual act on someone who is in a state where they can’t consent to sex, like being unconscious. There are no exceptions, not even if someone gives their sexual partner consent in advance.
2. Apparent consent is not necessarily actual consent
Canadian law says that in certain circumstances, a person can seem to consent to sex, but their consent wasn’t true consent. In such cases, the seemingly consensual sex was actually a sexual assault.
One example of this is if someone is in a position of authority and uses it to induce another person into consenting to have sex with them. The person in a position of authority doesn’t need to coerce the person below them. It’s enough if they use their position of authority to induce the person below them to consent to sex with them.
Another example of this is if someone has unprotected sex with another person without disclosing to them that they’re HIV positive. Assuming the other person wouldn’t have consented to sex if they had known about their sex partner’s HIV positive status, the HIV positive person is guilty of a sexual assault. The law says that the HIV positive person obtained the other person’s consent by fraud, and therefore the other person never truly consented to sex with them.
The example above might raise concerns about what amounts to fraudulently obtaining consent to sex. The law doesn’t say that a person obtains consent to sex fraudulently because, for example, they lied about their age, income, or sexual history, and had sex partner known the truth they never would have consented to sex with them. The fraud must have put the victim’s health at serious risk or related to the central character of the sex.
3. Consent occurs entirely in a person’s mind
Canadian law says that consent is entirely a matter of what someone was thinking at the time. If they thought “I don’t want to do this”, then they were not consenting to sex, even if they said out loud “this is great, let’s keep going”.
This might seem scary. It suggests that someone could theoretically be accused of sexual assault because their sex partner didn’t want to have sex with them, even though they said the opposite at the time. However, in such a case the person accused of sexual assault would have a defence of honest belief in consent.
Honest belief in consent means that if an accused honestly believed their sex partner was consenting and took reasonable steps at the time to find out if their sex partner was consenting, then they’re not guilty of sexual assault.
4. A drunken consent is still consent
There are some people who agree with the message “if you’re too drunk to drive, you’re too drunk to consent to sex”. This is not the law in Canada, but there is a level of intoxication where a person loses the capacity to consent.
The degree of intoxication required to no longer be legally allowed to drive is not high. In British Columbia, this is only 0.05 mg alcohol in 100 ml of blood. Most people will have blood alcohol levels above that number if they consume three standard drinks within an hour or two.
Having a few standard drinks will certainly be enough to impair someone while driving, but it will not be enough that the law says they can no longer consent to having sex with another person.
A person will be guilty of sexual assault if they have sex with someone so intoxicated that they no longer have the capacity to consent. To reach that level, there should be signs that the intoxication is very high. Examples of the kind of evidence that would support a person’s incapacity to have sex includes vomiting, difficulty standing up, slurred speech, slouching, sleepiness, stumbling, and confusion.
5. No one can bring up a sexual assault complainant’s sexual history at trial
As a starting point, neither the Crown prosecutor nor the defence lawyer is permitted to bring up any sexual history of a sex assault complainant, unless they get permission from the judge first. This might not seem surprising because a sexual assault complainant wouldn’t want their privacy invaded by the trial process, but this rule has a few surprising elements to it.
First, the rule applies both to the defence and the prosecutor. Even though the prosecutor is the one attempting to obtain justice for the complainant, they’re not allowed to bring up a complainant’s sexual history as part of their case. They need permission from the judge first, just like the defence does.
Second, the rule applies to all sexual history, even if the complainant and accused have been married for 40 years and have had many children together. By default, the jury is not allowed to hear about the married couple’s sexual history at all.
Third, there is no parallel rule protecting the privacy of the accused. The Crown can cross-examine them as much as they want on their sexual history, without limit, subject to the usual rules of evidence (e.g., relevance, self-incrimination, etc.).
Fourth, the rule applies to all sexual communication. This means that in a case where an accused and complainant were texting each other sexual things before the incident (e.g., the complainant messaged the accused “I can’t wait to f*** you tonight”), those communications are not admissible in court unless the judge allows it.
Fifth, in the vast majority of cases the judge doesn’t allow the prior sexual history of the complainant to be admitted at trial. The legal test for allowing this kind of evidence to be admitted is high and difficult to overcome for the defence. Even in a case where an accused is alleged to have sexually assaulted a complainant during BDSM, the accused and the complainant’s prior history of engaging in BDSM together is presumptively inadmissible. This could distort the jury’s view of the case because they might hear that an alleged sexual assault occurred in the context of BDSM without knowing the accused and complainant had previously engaged in consensual BDSM. Without that knowledge a jury would be much more inclined to think the accused is guilty because it would be strange to imagine a complainant agreeing to BDSM the very first time they had sex with someone else.
Finally, the rule exists not only to protect the privacy of the complainant, but to guard against the “twin myths” of sexual assault. These myths are that a woman is more likely to have consented to sex because of their sexual history, or that because of their sexual history they’re less worthy of being believed. Canadian law does not trust juries with the twin myths of sexual assault. Instead of judges warning juries not to think badly about the case, they prevent juries from hearing any of the evidence at all.
Consent Laws In Canada: Contact Filkow Law
If you have any more questions surrounding sexual assault or consent law in Canada, call Filkow Law today.