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Sexual Assault Archives

Is Friends with Benefits Evidence Admissible in Sexual Assault Case ?

In a case called Goldfinch, the Supreme Court of Canada considered whether the trial judge should have admitted evidence that Mr. Goldfinch and the complainant in a sexual assault case were in a "friends with benefits" relationship. At trial, the evidence was admitted to give context to their relationship. Mr. Goldfinch was found not guilty by a jury. It is now clear that "friends with benefits" evidence will not be admitted just to put a relationship in context because that would violate the myth that someone who has consented to sexual activity in the past is likely to have consented on the date of the alleged offence. At Mr Goldfinch's trial, he and the complainant both testified that he mouthed the words "I'm going to fxxx you." One of the Supreme Court opinions, written by Justice Moldaver, suggested that the 'friends with benefits" evidence might have been admissible had Mr. Goldfinch been more specific in his Notice of Application about the specific and legitimate purpose that the evidence would have had at trial. Specificity could avoid violating the myth that prior consent is relevant to consent at the time of the alleged offence. Justice Moldaver wrote that the "I'm going to fxxx you" comment could have seemed "bizarre or even menacing" without evidence about "friends with benefits". Because the Supreme Court found that the trial judge made errors, Mr. Goldfinch has to go to trial again. At his new trial, Mr. Goldfinch will have to file a detailed application and the trial judge will decide whether the evidence is admissible. The trial judge will weigh the narrow purpose for admitting the evidence and the impact that the evidence could have on the complainant's privacy rights and dignity. If the trial judge finds that the evidence is necessary to ensure Mr. Goldfinch can make full answer and defence to the charge, it will be admitted. This is a very complex and developing area of law requiring counsel with expertise.

Sexual Exploitation Mandatory Minimum Struck Down

In a recent case in the Onatrio Superior Court of Justice, the mandatory minimum one year jail sentence for Sexual Exploitation was found to be unconstitutional.  This decision is part of what is now a long line of cases where mandatory minimum senteces for sexual offences have been struck down.  In the decision of R. v. Cristoferi-Paolucci, Justice McWatt looks to two hypothetical situation where the mandatory minimum would be grossly disproportionate:

90 day mandatory minimum sentence for sexual interference stuck down

Mandatory minimum senteces for sexual offences are continuing to fall. The mandatory minimum sentence of one year in jail for sexual interference when the Crown proceeds by indictment has previuosly been declared unconstitutional in many cases Now, the mandatory minimum of 90 days in jail has beem struck down.

Invitation to Sexual Touching Mandatory Minimum Struck Down

In a recent case in the Ontario Superior Court of Justice, R. v. Hussein, the accused brought an application to have the mandatory minimum sentence for the offences of invitation to sexual touching, sexual interference and sexual assault of one year in jail struck down as unconstitutional. Section 12 of the Charter of Rights ensures that "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment."

What is Sexual Exploitation?

Although the age of consent in Canada is 16, in some cases you can still be convicted of an offence for engaging in sexual activity with someone over the age of 16 but under the age of 18. If you are in a position of trust or authority towards a young person, or the young person is in a relationship of dependency with you, or exploitative of the young person, you could be convicted of the offence of sexual exploitation.

What is Invitation to Sexual Touching?

If you have been charged with Invitation to Sexual Touching pursuant to s. 152 of the Criminal Code you may be wondering what exactly this allegation involves. The section states that every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, including the body of the person who invites, counsels or incites, is guilty of an offence.

What is Sexual Interference?

The offence of sexual interference applies to situations in which there is any touching of a minor in a sexual manner. This can include masturbation, oral sex or intercourse. Section 151 of the Criminal Code states that every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of sixteen years is guilty of an indictable offence. It does not matter if the minor consented to the activity, except in limited circumstances where the accused is close in age to the minor (see our blog entry on "Age of Consent"). Nor does it matter if the minor instigated the touching so long as the accused had a sexual purpose when taking part. In some cases, it may be possible to argue that the touching was not for a sexual purpose, such as a situation where a parent is giving bath to a child. However, in the vast majority of cases the defence will be based on an argument that the Crown has failed to prove beyond a reasonable doubt that any sexual activity took place. The focus at trial will be to attack the credibility and reliability of the allegations. A discussion of what is involved in mounting such a defence can be found in out blog entry "The I Didn't Do It Defence to a Sexual Assault Charge."

Consequences of a Conviction for Sexual Assault

If you have been charged with a sexual offence, the consequences of a conviction can be serious. In all but the most minor of offences, some form of jail sentence is likely to be imposed. The length of the sentence can vary. In cases of date rape, the sentence is likely to be between two and five years. In cases of ongoing abuse of children, particularly if there are more than one victim, the sentence can be much higher than five years.

The Defence of Mistake of Age in Sexual Assault

For certain sexual offences against young people, such as sexual interference, it is a defence in some circumstances to be mistaken about their age. In order for this defence to be valid, an accused person must take all reasonable steps to ascertain the age of the complainant. So, what does "all reasonable steps" actually mean? The Supreme Court of Canada provided some guidance in the recent case of R. v. George.

The Age of Consent: Sexual Offences

The age of consent for sexual activity in Canada is set out in the Criminal Code. As a general rule, a person cannor consent to sexual activity until they are 16 years old. As a result, if you have sexual relations with someone who is not yet 16 years old it is no defence that he or she consented to the activity. However, there are exceptions.

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Sexual Assault Archives | Ottawa Criminal Law Blog