6 Legal Defences Lawyers Can Use in Court During Sexual Assault Cases
Facing a sexual assault charge is one of the most serious and stressful experiences someone can endure. The allegations reach far beyond the courtroom — affecting your reputation, relationships, employment, and mental well-being.
In Canada, and specifically in Alberta, these cases are treated with immense care by the justice system. That’s because sexual assault charges involve deeply personal matters, complicated evidence, and strict legal rules that govern consent and credibility.
A sexual assault defence lawyer plays a crucial role in ensuring your rights are protected from the first contact with police through every stage of the legal process. This article is about understanding the key defences available (and how they work in practice) is essential if you want clarity about your options and the strongest possible defence.
1. No Assault Occurred / Factual Innocence
A fundamental defence is simply that the alleged sexual activity never occurred, or that the Crown’s evidence is unreliable or inconsistent. This can involve:
challenging timelines or physical evidence
presenting alibi evidence
identifying inconsistencies in witness accounts
If the Crown can’t prove beyond a reasonable doubt that the alleged act happened, you won’t be convicted. In all Canadian criminal cases, including sexual assault, the burden of proof rests entirely with the Crown. You are presumed innocent until proven guilty.
2. Consent Was Present
Sexual assault under the Criminal Code of Canada requires the prosecution to show that the complainant did not consent to the activity in question. If there is credible evidence that valid consent was given — meaning it was informed, voluntary, specific to the act, and ongoing — then by definition, no sexual assault occurred. A sexual assault defence lawyer may present communications, conduct, or corroborating evidence to support this position.
Consent is defined in section 273.1 of the Criminal Code; if the defence can cast a reasonable doubt on the absence of consent, it can undermine the Crown’s entire case.
3. Honest but Mistaken Belief in Consent
Sometimes, the accused asserts that they honestly believed the other person was consenting, even if that belief was mistaken. This defence, often described as a “mistake of fact,” is recognized in Canadian law but has strict limitations.
To raise this defence successfully, the lawyer must show that:
The accused genuinely believed consent was present, and
That belief was based on the words or conduct of the complainant that could reasonably be interpreted as consent.
Notably, a mistaken belief cannot be founded on self-induced intoxication, reckless behaviour, or assumptions based on silence or passivity. The defence also requires “reasonable steps” to ascertain consent to avoid being speculative or purely subjective.
This approach does not mean a simple misunderstanding excuses the conduct — it must meet legal standards and persuade the judge or jury that the belief was honest and grounded in contextually reasonable behaviour.
4. Mistaken Identity
Another key defence arises when the alleged incident occurred, but the accused's identity is disputed. Eyewitness identification can be unreliable for many reasons — lighting, memory lapses, stress, or confusion — and a defence lawyer can investigate whether the complainant or witnesses have mistakenly identified the wrong person.
This may involve presenting alibis, expert evidence, or demonstrating inconsistencies that create reasonable doubt about who was actually present.
5. False Allegations and Motive
Although rare and deeply sensitive, some cases involve false accusations, often arising from misunderstandings, personal conflicts, or ulterior motives. A sexual assault defence lawyer will examine the circumstances surrounding the allegation to probe credibility, motive, and alternative explanations. This might include patterns of behaviour, evidence contradicting the allegation, or contextual factors that weaken the Crown’s narrative.
6. Evidence Challenges and Charter Issues
Beyond traditional “defences,” much of modern sexual assault defence work is pre-trial strategy. This is based on scrutinizing how evidence was obtained and whether it was handled lawfully. This includes:
Challenging improper police procedures
Asserting Charter rights violations (e.g., unlawful search or failure to advise of rights)
Excluding evidence that is unfairly prejudicial or unreliable
Strong sexual assault defence lawyers, like Patmore Defence, will know how to weave these legal challenges into the overall defence strategy, often making the Crown’s case far weaker before the trial even begins.
How a Sexual Assault Defence Lawyer Makes a Difference
Defending a sexual assault charge is not a one-size-fits-all exercise. These cases are legally complex and emotionally charged, and the best defence tactics depend on the unique facts of each situation. Ryan Patmore has defended countless Sexual Assault allegations at all levels of court, from the most minor to the most serious. In court, he will:
Break down the elements the Crown must prove, including consent and knowledge of non-consent
Build a defence that targets weak points in the Crown’s theory
Leverage legal principles like honest but mistaken belief appropriately
Use pre-trial motions to challenge problematic evidence and protect your rights.
Book a confidential consultation right away and let us help protect your rights.