Sexual Assault Lawyer
Nanaimo & All of BC

The Crown must disclose all relevant material: R v Stinchcombe, [1991] 3 SCR 326. In practice, disclosure in sexual offence cases is frequently incomplete. Multiple complainant interviews may not be disclosed. Text messages, social media records, and communications between the complainant and third parties may exist but not be produced. Where disclosure is incomplete, the defence can bring an application to compel it.

Section 276 makes a complainant’s prior sexual history presumptively inadmissible — including prior activity with the accused. Any such evidence requires a formal written application and a private hearing before the trial judge, conducted under a publication ban. The evidence is excluded unless the defence satisfies specific criteria.

In some cases this application is not merely helpful — it is the key to understanding the entire defence. The test requires the defence to establish that the evidence is relevant to an issue at trial, has significant probative value that is not substantially outweighed by its prejudicial effect, and does not rely on a prohibited inference — specifically, that the complainant consented or is less credible because of prior sexual activity. The leading cases are R v Goldfinch, 2019 SCC 38 and R v Kinamore, 2025 SCC 19.

This applies to things like medical records, therapy notes, counselling files, school records, and anything else in the possession of a party other than the Crown. To obtain such records, the defence must bring a formal application, the complainant has standing at the hearing, and even if production is ordered the records go first to the judge before reaching the defence. The threshold is high.

The test proceeds in two stages. First, the defence must establish that the records are likely relevant — that there is a reasonable possibility the records contain information that could be useful to the defence. If that threshold is met, the judge reviews the records privately and determines what, if anything, will actually be produced. Relevance, privacy interests, and the potential use of the records are all weighed. The framework was established in R v O’Connor, [1995] 4 SCR 411 and upheld in R v Mills, [1999] 3 SCR 668. Without experienced counsel pursuing these records early, relevant evidence may never reach the defence.

Where the accused possesses records relating to the complainant — text messages, photographs, documents from a relationship — those records cannot simply be introduced at trial. A formal application under s. 278.92 must be brought first. For example, if you have text messages proving your innocence, you still need to ask the judge for permission, and go through costly, uncertain, and time-consuming procedures to use the evidence. These requirements apply only to sexual offences — in any other case, the accused has a right to use relevant records.

The court conducts a two-stage screening process under ss. 278.93–278.94 applying the same criteria as s. 276: the defence must show the records are relevant to an issue at trial and have significant probative value not substantially outweighed by prejudicial effect, without relying on a prohibited inference about the complainant’s conduct or credibility. The complainant has standing at the hearing. These provisions were upheld in R v J.J., 2022 SCC 28.

Registration under the Sex Offender Information Registration Act is not automatic in every case. The current framework — under ss. 490.012–490.013 of the Criminal Code, as amended by Bill S-12 following R v Ndhlovu, 2022 SCC 38 — distinguishes between mandatory and discretionary orders:

Mandatory registration applies in two circumstances: (1) the offence was prosecuted by indictment, the sentence is two or more years, and the victim is under 18 (s. 490.012(1)); or (2) the offender has a prior conviction for a primary designated sexual offence (s. 490.012(2)). In these cases the court must order registration.

Discretionary registration applies in all other cases. There is a presumption in favour of registration, but the court retains discretion not to make an order if registration would be grossly disproportionate in its effects on the offender’s privacy or liberty, or overbroad in relation to its purpose. The judge must weigh those factors on the specific facts before them.

The duration of orders — 10 years, 20 years, or lifetime — depends on the maximum sentence for the offence and the circumstances. Lifetime orders for multiple offenders now require the court to find a pattern of behaviour demonstrating a higher risk of reoffending. An experienced lawyer can make submissions both on whether a SOIRA order should be made and, if so, on its duration.

DNA orders are governed by s. 487.051 of the Criminal Code. The framework distinguishes between primary and secondary designated offences: see R v Rodgers, 2006 SCC 15.

All sexual offences carrying a maximum of five years or more are primary designated offences under s. 487.04. For most of these, registration is mandatory under s. 487.051(1) — the court must make the order. However, under s. 487.051(2), the court may decline if the offender satisfies the court that the impact on their privacy and security would be grossly disproportionate to the public interest. The burden is on the offender and the threshold is high.

For secondary designated offences, the order is discretionary: the court considers the criminal record, the nature and circumstances of the offence, and the privacy impact. An experienced lawyer can make submissions on both whether an order should be made and its scope.

Consent is defined in s. 273.1 of the Criminal Code as the voluntary agreement of the complainant to engage in the sexual activity in question. Consent must be present at the time of the activity — it cannot be implied from prior conduct, prior sexual history, or from silence. The SCC confirmed in R v Ewanchuk, [1999] 1 SCR 330 that there is no defence of implied consent: the complainant either consented or she did not. Consent is determined by the complainant’s subjective state of mind at the time.

Where the accused honestly but mistakenly believed consent was given, that may be available as a defence under s. 273.2 — but only where the accused took reasonable steps in the circumstances to ascertain that consent. Recklessness or wilful blindness is not sufficient.

Where the evidence genuinely supports consent — or where an honest mistaken belief argument has merit — these can be complete defences. The analysis is fact-specific and requires careful preparation.

Sexual offence cases often turn entirely on whether the complainant is believed. Prior inconsistent statements, motive to fabricate, personal bias, memory issues, and the absence of corroborating evidence can all be used to raise reasonable doubt. Skilled cross-examination is often the most important tool in the defence.

The Crown cannot prove beyond a reasonable doubt that you were the person who committed the offence. Eyewitness identification evidence is among the most unreliable forms of evidence in criminal law. There are several famous Canadian cases of mistaken eyewitness identification — and many more that have never come to light. Thomas Sophonow was tried three times for a Winnipeg murder before being exonerated — the case against him rested substantially on eyewitness identifications that proved unreliable, a finding documented in detail by the Sophonow Inquiry (Cory J, 2001). Guy Paul Morin was convicted of murdering a child next door to him in Ontario and spent years under prosecution before DNA evidence proved his innocence — eyewitness and forensic failures were catalogued by the Commission on Proceedings Involving Guy Paul Morin (Kaufman J, 1998). These are not outliers — they reflect a well-documented problem with how human memory and identification actually work. The risk of wrongful conviction is real.

Unlawful search or seizure (Charter, s. 8), arbitrary detention or arrest (Charter, s. 9), failure to advise you of your right to counsel or provide you with access to counsel (Charter, s. 10(b)), or withheld or destroyed evidence (Charter, s. 7) — and other forms of police misconduct — can result in evidence being excluded or charges being stayed entirely. Rights violations are more common than people expect.

However, not every rights violation entitles you to a remedy. Charter litigation is complicated because of its procedures and the law’s attempt to balance competing social interests — between prosecuting offences and upholding individual rights. Even where a breach of rights is proven, the court might not give any remedy.

Under Charter, s. 24(2), evidence obtained through a rights violation is excluded only where admitting it would bring the administration of justice into disrepute — a three-part balancing exercise that weighs the seriousness of the breach, the impact of the breach on the accused’s Charter interests, and society’s interest in adjudication on the merits: R v Grant, 2009 SCC 32. A serious or deliberate violation is more likely to result in exclusion; a technical or inadvertent one may not.

Not every sexual offence case goes to trial. Where the Crown’s case has weaknesses, those can be leveraged to negotiate a better outcome. Where the evidence is stronger, the focus shifts to the client’s personal circumstances and background.

Strong advocacy at sentencing can make a significant difference — including the difference between jail and a conditional sentence, or between a record and a discharge.

Sexual offence investigations often begin before any charge is laid. Police may contact you for a statement, conduct surveillance, or obtain warrants for your electronic devices. If you are contacted by police — whether by phone, at your door, or at a police station — you have the right to remain silent and the right to retain and instruct counsel without delay: Canadian Charter of Rights and Freedoms, s. 10(b). Exercise both rights. Do not provide a statement until you have spoken with a lawyer.

If you are arrested, police are required to inform you of the reason for your arrest (Charter, s. 10(a)) and your right to retain and instruct counsel without delay (Charter, s. 10(b)). They must give you a reasonable opportunity to reach a lawyer before questioning. A lawyer retained at this stage can advise you on how to conduct yourself, which will have a major impact on the future conduct of the case.

After arrest, police will either release you directly or hold you for a bail hearing. Release can take several forms: a promise to appear (s. 493), an undertaking with or without conditions (s. 503), or a release order made by a judge following a hearing (s. 515). Under s. 503, if held for a hearing it must occur within 24 hours of arrest.

In sexual offence cases, the Crown typically seeks strict conditions: a no-contact order with the complainant, residential restrictions, and often limits on internet use or contact with minors. Where the complainant is a family member or shares a home, these conditions can be immediately disruptive to your housing, employment, and family life. Strong representation at the bail hearing matters — conditions set at release govern your life for the duration of the case, which may be a year or more.

You do not need to attend your first court appearances. We appear on your behalf. Although you will have court every few weeks for the first few months, each appearance will be adjourned to allow us to receive and review the Crown’s disclosure package, advise and seek instructions from you, and speak with the Crown.

We will not enter a plea of guilty or not guilty until we have done that work and obtained your instructions.

Sexual offence trials proceed before a judge alone or, in some cases, before a judge and jury (s. 536). We regularly set jury trials for sexual assault matters and understand how to present a defence that resonates with twelve members of the public. Depending on the charge and the circumstances, the choice between judge alone and judge and jury is itself an important strategic decision — one we will discuss with you in detail.

The Crown must prove the offence beyond a reasonable doubt. The accused does not have to testify or prove anything, but has a right to. In practice, most sexual offence trials turn on the credibility of the complainant against the narrative of the accused. Pre-trial applications — including s. 276 applications, Charter motions, and third party records applications — are usually argued and determined before the evidence begins. Thorough preparation long before trial starts is necessary. As you can see, this is how what appears to be a simple case of one word against another turns into complicated legal proceedings.

If convicted — whether after trial or by guilty plea — sentencing is a separate proceeding. Sexual offence sentencing has become increasingly severe in recent years, with appellate courts regularly upholding significant custodial terms: R v Maslehati, 2024 BCCA 207. Sentences of two to three years’ jail are routinely imposed on first-time offenders.

However, sentence ranges vary considerably depending on the nature of the offence, the circumstances, the client’s background, and the mitigating factors presented. A conditional sentence, a suspended sentence, or a discharge — all non-jail sentences — is possible in appropriate cases: see e.g. R v Elmazini, 2019 BCSC 41; R v Menezes, 2024 BCSC 448; R v 32992, 2025 BCSC 75. Experienced sentencing counsel can make a significant difference to the outcome.

Zargarian Litigation has a track record of achieving exceptional outcomes in serious cases — including cases where the client was acquitted, charges were dropped, a criminal record was avoided, or a no-jail sentence was secured.

A conviction or sentence can be appealed where there has been an error. An appeal is not a new trial — it is a review of whether the trial was conducted correctly and whether the verdict or sentence was legally sound. After a successful appeal, the case might finally end or you might get a new trial.

Babak Zargarian practises in both trials and appeals, a combination that is uncommon and that brings distinct advantages to both areas of work. He has successfully appealed sexual assault convictions at the BC Court of Appeal, including R v Brooks, 2023 BCCA 121 and R v Jaberi, 2024 BCSC 169.

Do not speak to police without speaking to a lawyer first. Anything you say — to police, the complainant, or anyone else — can and likely will become evidence against you. The time for telling your story is with the assistance of counsel, after we receive the police file and know what we are dealing with. What feels like proclaiming your innocence will likely be one of the worst decisions you ever make.

Mere words are evidence under Canadian law. A conviction, let alone a charge, can rest on the evidence of a single witness, including the complainant alone. There is no legal requirement for physical evidence, corroboration, or independent witnesses. Allegations can sound compelling in court, and witnesses sympathetic.

That said, credibility cases cut both ways. The case rises and falls on whether the complainant is believed. That creates real opportunity for the defence: inconsistencies in prior statements, motive to lie, reliability issues, gaps in the narrative, and things that simply don’t make sense can all be used to raise a reasonable doubt. In turn, the accused can testify and offer a compelling counter-narrative.

Good legal, practical, and strategic judgment is necessary to bring the defence to life. Courts in BC have recognized that a bare denial — without a coherent counter-narrative — is often insufficient to raise a reasonable doubt: R v Dick, 2018 BCCA 343. These cases are won through careful preparation, thorough disclosure review, and skilled cross-examination. A good defence is built long before the trial begins. Call us to understand our specific strategies for these cases.

More sexual offence cases go to trial than in almost any other area of criminal law. The charges are serious, the consequences of a guilty plea can be severe and permanent, and the evidence typically comes down to credibility rather than clear physical proof. For many clients, trial is the right choice.

That said, many cases do resolve through negotiation — pleas to a lesser charge, peace bonds, no-jail outcomes, and even dropped charges are all results we have achieved. What is realistic depends on the strength of the Crown’s case, what can be proven, and your individual circumstances and priorities. These kinds of resolutions take a great deal of care and preparation.

The decision to proceed rests with Crown Counsel, not the complainant. Even if the complainant recants, does not wish to testify, or communicates a desire to withdraw, the Crown may still elect to proceed.

That said, the complainant’s position is significant and can be sensitively and strategically leveraged to achieve a real outcome for the client: for example, dropped charges, a peace bond, or a plea to something far less serious. How to use that information and speak with Crown Counsel requires careful judgment. These situations require experienced counsel.

A conviction for a sexual offence typically results in a jail sentence, mandatory registration under SOIRA, a DNA order, and potentially a weapons prohibition and other ancillary orders. The consequences are serious and long-lasting. Sentences of two to three years jail for first-time offenders are common. Even after conviction, strong sentencing advocacy can make a material difference. Where there was an error in the trial, an appeal may be available.

The Criminal Code sets out the charges and the maximum sentences. What it does not tell you is what sentences are actually likely to be imposed, how consent has been interpreted across decades of case law, which pre-trial applications are available and when to bring them, how credibility is assessed by judges in practice, what kind of defence is actually compelling and how to bring it to life, or how to navigate the maze of appearances and procedures. That knowledge comes from experience — from having argued these applications, cross-examined these witnesses, and appeared in these courts countless times before.

Sexual offence law also has a special procedural framework that does not apply to other areas of law — for example, applications for third party records, using your own text messages, or asking questions about sexual history evidence. Missing a step, or bringing the wrong application at the wrong time, can close off options that would otherwise have been available. This is work that requires specific experience, not general legal knowledge.