Begging for money?

So, last week, I was on the radio in Vancouver. I was a guest speaker on CKNW radio, talking about panhandling and the laws around it.

Now, if you recall, I wrote a column about this topic about a year ago: Is panhandling illegal? And, while I had written about the law around panhandling before, I wanted to do some extra research. Really, I didn’t want to sound foolish on the radio!

So, for a few hours, I did some extra research, and I thought I would share some of that research with you.

To start, there are actually a lot of laws that attempt to regulate how people can panhandle.

In 2004, the provincial government created the Safe Streets Act. It was an attempt to make a bunch of different types of panhandling illegal.

The prime motivating factor behind this law was that a lot of businesses were complaining about panhandlers harassing their customers. Also, tourists were being “put off”, especially in Vancouver.

So, the new laws made it illegal to ask for money in an “aggressive” way. Now, what does that mean?

Well, it means that panhandlers can’t follow someone for money, they can’t use threatening or rude gestures, they can’t block someone’s path, and they can’t repeatedly ask someone for money. If someone violates these rules, then they can receive a $115.00 fine.

The new laws also made it illegal to panhandle in certain places, basically creating “no go” zones for panhandlers. So basically, panhandlers can’t ask for money within 5 meters of a bus stop, a public toilet, a pay phone, or an ATM. It basically made it illegal for panhandlers to ask a person for money if that person is standing in a place and is being held ‘captive’, not being able to walk away (because they are waiting for the ATM or whatever else). There is an $86.00 fine for this offence.

Now, the provincial government didn’t REALLY have to pass these laws – this is because a lot of municipalities already have very similar laws.

Cities, such as Kelowna, Kamloops and Vancouver have laws that outlaw nearly the same type of panhandling. In fact, the municipalities’ laws are often ‘tougher’ on panhandlers. For instance, Kamloops, Kelowna and West Kelowna make it illegal to ask for money within 10 METERS (rather than 5 meters) of an ATM or bus stop.

But, really, what’s the point of giving a fine to someone who is panhandling? If you thought this, you’re exactly right.

The typical ways that are used to get money from people (who owe fines or debts) don’t really apply to people who are begging for money. After all, if they had assets to collect or wages to garnish, they probably wouldn’t be panhandling in the first place…

So, what do authorities do? Well, let’s not forget the Criminal Code, which arguably has more ‘teeth’.

The Criminal Code makes it illegal to threaten someone or disrupt someone’s right to enjoy their property (while panhandling).

And, make no mistake: the Criminal Code is used against panhandlers. For instance, in Victoria last year, a man was arrested and charged with mischief (a Criminal Code offence) for repeatedly entering into businesses and asking customers for money.

Clearly, there are a lot of laws that surround panhandling.

And, as a ‘final thought’ (quoting Jerry Springer), let’s not paint all panhandlers with the same brush. Sure, some people will act aggressively. But, others are simply down on their luck and don’t deserve to be treated with disrespect. So, be nice.

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Column originally posted on Castanet.net on August 20, 2013: Begging for money?

Prostitution is legal?!

I was in Las Vegas recently and, if you’ve been there, you’ll probably remember the ‘business cards’ that depict semi-nude women and that cover the sidewalks like raindrops. It’s shocking actually, how many of these ‘cards’ cover the ground. And, in addition to depicting women, these ‘cards’ quote a ‘price’ (seemingly for sexual services).

Seeing these cards led me to think of this week’s column topic: is prostitution legal in Canada?

To start, here’s something you already know: prostitution is BIG business. Here are the numbers:

  • 7% of Canadian men have paid for sex;
  • 15-18% of American men have paid for sex; and
  • Over one million people in America have worked as a prostitute.

Keep in mind though, that numbers in this area are hard-to-get and estimates should be treated with caution.

With that said, though, there’s no question that prostitution is BIG business. But, is it legal? That’s the million-dollar question…

And here’s your answer: prostitution (i.e. buying or selling sexual services) in Canada is NOT illegal.

HOWEVER, here’s the kicker: the activities that SURROUND prostitution ARE illegal.

So, what do I mean by that?

Well, I’ll go through the list…

  • Communicating with someone in a public place for the PURPOSE of prostitution (like ‘negotiating for sexual services’) is illegal;
  • It’s illegal to live in, be a landlord, or be found (without a good excuse) in a “bawdy-house” (i.e. brothel);
  • Transporting, like driving, someone to a brothel is illegal; and
  • It is also illegal to live off (i.e. make money off) of the ‘avails of prostitution’.

So, let’s get this straight: paying for sex is legal, but all the activities that SURROUND the act of paying for sex are illegal? It’s weird, I know.

Obviously, the current laws are confusing. And, here are some illustrations to further show the confusion:

  • Negotiating in a public place about the purchase of sex is a crime (and is commonly referred to as ‘solicitation’). And, a vehicle on a street is considered a public place. So, negotiating with a prostitute in such a vehicle is illegal. BUT, someone negotiating over the telephone is less likely to be found guilty for ‘solicitation’. Is this fair?
  • Living off the avails of prostitution is illegal. This law is really to combat against ‘pimps’. But, consider this: if a prostitute has an accountant (who charges and makes money from the prostitute), then the accountant is technically committing a crime. Does that sound right to you?

At this point, you might be thinking, “This guy’s arguing to decriminalize prostitution!”

If that’s what you’re thinking, you’re wrong. I am not telling you that…you need to make up your own mind.

I am, however, arguing that the laws need to be clearer…much, much clearer. And that leads me to this: a lot of this confusion will soon be addressed in the landmark case, Bedford v. Canada.

In the Bedford case, the Supreme Court of Canada is currently deciding whether some of the laws that SURROUND the act of prostitution should be changed. And, believe it or not, the laws surrounding prostitution could change A LOT in the near future (depending on what the Court does).

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Column originally posted on Castanet.net on June 25, 2013: Prostitution is legal.

Drunk driving law 101

While working in a Vancouver courthouse, I watched a judge tell a self-represented person, who had been charged with drunk driving, to seriously consider hiring a lawyer. The judge said that, in many ways, an impaired driving charge is more complicated than a murder charge.

And, as odd as it may sound, the judge was absolutely correct.

This week’s column will attempt to shed some light on the criminal offence of drunk driving, which, in Canada, is more commonly referred to as ‘impaired driving’.

To start, impaired driving laws have changed significantly in BC in the last few years.

In two previous columns, I have written about those changes: Drunk Driving Laws and Changes and Decriminalizing Drunk Driving.

The big change, in a nutshell, is that the BC Liberals created an administrative process that allows the police to bypass the criminal process. The administrative process is quicker and easier for police, but it has fewer safeguards to ensure the guilt (and the innocence) of those charged with impaired driving. I encourage you to read up on these changes.

Now, not surprisingly, criminal charges are less likely to occur in impaired driving cases (because police often elect to rely on the quicker and easier administrative process).

But, make no mistake: the criminal process remains and people can still be criminally charged with impaired driving. Criminal charges are more likely to occur if there are ‘aggravating factors’ present, which include the driver causing a car crash or the driver having a long and poor driving record.

Now, how does this criminal process actually get started? What are police actually looking for in an impaired driving investigation?

To explain these questions, here is an illustration:

Imagine that, after work, you have a few drinks at a pub and get into your car to drive home. While driving home, you drive into a ‘road-block’ and a police officer stops your vehicle. The officer will ask you if you have been drinking tonight and will closely observe your behaviour. Maybe your breath smells like alcohol? Maybe you slur your words? Maybe you have watery eyes? Maybe you are slow to get out your driver’s licence?

If your behaviour leads the officer to have a SUSPICION that there is alcohol in your body, then the officer can request that you blow into a roadside screening device, which renders a ‘pass’, ‘warn’, or ‘fail’ reading.

If you blow a ‘fail’, then you’ll be taken to the police station to be further submitted to a breathalyzer machine to (more accurately) measure your blood-alcohol level.

If, at the police station, your blood alcohol level is higher than ‘0.08’, then then the police officer will forward their notes and your breath results to Crown Prosecutors who will decide whether or not to proceed with criminal charges.

If criminal charges are laid, then you’ll likely have two separate charges against you: one charge for “impaired driving” and another charge for “driving over 0.08”.

Now, you may be thinking: “How does that happen?! Two criminal charges for one offence?” Well, yes, this happens. And here’s the law:

According to section 253(a) and (b) of the Criminal Code, it is a criminal offence to operate a motor vehicle:

a)  if you are impaired by a drug or alcohol; OR

b)  if you have consumed alcohol in such a quantity that the concentration in your blood exceeds eighty milligrams of alcohol in one hundred milliliters of blood (i.e. “driving over 0.08)”.

Now, it may sound strange, but Crown Prosecutors will typically lay charges under both section 253(a) AND (b).

For technical/legal reasons, you cannot be CONVICTED on both charges: so, even if you are guilty of both charges, only one of the charges will appear on your criminal record. But, when defending an impaired driving case, you or your defence lawyer MUST fight against BOTH charges.

Now, what does Crown have to prove in their case?

Well, for the impaired driving charge, the Crown Prosecutor needs to prove that your ability to drive was impaired. This is typically proven by calling the arresting police officer as a witness and having him/her describe your impaired-type behaviour, which can include your slurred speech, lack of balance, odour of alcohol on breath, and/or erratic driving.

For the “over 0.08” charge, the Crown will rely on your breath results taken from the breathalyzer machine.

For each offence, there are several rules that the police and the Crown MUST follow. If not, then Crown will lose its case.

For example, the police must inform an alleged impaired driver of their ‘right to counsel’ (i.e. their right to speak to a lawyer) when they are arrested. If the police don’t do this, then the breath results may not be allowed into evidence at trial (and the criminal charges may be ‘thrown out’).

I wish I could continue, but there is NO WAY that I can describe impaired driving law in one column. There are VOLUMES of material on this subject – it is very, very complicated.

But, with that said, there is ONE thing that is simple about impaired driving: don’t do it.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on June 4, 2013: Drunk driving law 101.

Bullied, raped student ends her life…

I’m angry…

By now, you’ve heard about the tragic death of Rehtaeh Parsons. But, in case you’ve been living under a rock, here’s the tragedy…

Rehtaeh, 17 and from Nova Scotia, was taken off of life support and died on April 7, 2013 following a suicide attempt. Rehtaeh had been allegedly raped by four boys. Apparently, there was even a photograph of the rape. She was also bullied relentlessly.

The rape was reported to police, but APPARENTLY there wasn’t enough evidence to lay charges. So, the bullying continued… until Rehtaeh eventually took steps to end her own life.

I am furious!

Obviously, I am furious at the “boys” who committed the rape.

And, after reading about the tragedy, I am also furious at the police.

Granted, I don’t have the full story; but, I have a REALLY hard time believing that they couldn’t get enough evidence together. I also have a hard time imagining that four boys could commit such a serious crime and completely cover it up, totally escaping criminal liability…

The Nova Scotia government is apparently devoting substantial resources to find out what happened. I hope that they find the individuals who are responsible…

And, I applaud Nova Scotia Justice Minister Ross Landry for taking these steps. But, there is something that he said that just doesn’t make sense….

He said that, in the wake of Rehtaeh’s death, he’s considering NEW LAWS when it comes to sexual assault and distribution of child pornography.

Maybe I am missing something here…

The laws surrounding sexual assault and child pornography aren’t gray or vague. I think we all know that rape and child pornography are illegal. And, there aren’t truck-wide holes in those laws.

So, I fail to see how different laws would have prevented this tragedy.

It seems pretty clear to me: the police couldn’t get enough evidence to lay criminal charges. That’s what they said, right?

Okay, so let’s assume that the police weren’t incompetent in investigating the crime. If they weren’t (and we’ll find this out soon), then obviously they needed further resources.

It makes me angry when politicians say that they are going to create new laws when the existing laws are just fine. The problem isn’t the laws – it’s the ENFORCEMENT of those laws.

So, here’s a better idea: how about devoting more resources to ensure that police are able to effectively investigate crime? Better training, more police, more resources, you name it…

Enough is enough.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on April 16, 2013: Bullied, raped student ends her life…

Consequences of a criminal record

Receiving a criminal conviction will change your life, period. And, it can happen to almost anyone.

Let’s face it: a lot people commit a crime at some point in their lives. They just don’t always get caught.

Try to remember your youth:

  • have you ever drank a little too much and driven home afterwards?
  • have you ever told someone that you’re going to hurt them?
  • have you ever tried to fight someone who didn’t want to fight?
  • have you ever smoked marijuana or some other illegal drug?

I am not condoning crimes and I am not saying that people commit crimes often. But, let’s be real: a lot of, if not most, people commit a crime at some point.

So, what happens when you are convicted of a crime and, as a result, receive a criminal record? Answer: your life has forever changed. It’s a sad truth and it shouldn’t be underestimated.

First, your travel plans are “out the window”. With a record, you can still travel from province to province in Canada. But, other countries, like America, might refuse you entry. And, that might never change: if you get a pardon or have your record “wiped clean”, foreign countries might STILL refuse you entry, even several decades later. Border guards yield a lot of power – depending on the circumstances, some might let you in and some might not…

Also consider that if you are visitor to Canada (i.e. on a student visa or a temporary work permit), then you could be deported. And, if you are a landed immigrant, you could be deported or you may be prevented from applying for citizenship for several years.

Your school and education can also be affected. Some educational programs require a criminal record check before an applicant is accepted.

Your employment prospects are also affected. You won’t be surprised to hear that lawyers, doctors, police officers, teachers, and other professionals are required to undergo criminal record checks. But, there are also other jobs that have been closed to you…

Believe it or not, McDonalds sometimes requires criminal record checks. And, why not? There are plenty of people looking for work and McDonalds can be picky… Why would they hire someone who has a criminal record?

And, if you want to work with or near kids, then you can count on having a criminal record check. This includes teachers, as well as tradespeople and construction workers, who work for a school district.

You can also think twice about volunteering… I’ve volunteered at many organizations and it was not uncommon to have a criminal record check.

And, if you’re a hunter, you may be prevented from ever getting a firearm.

Bottom-line: next time you hear someone receive a “light” sentence (as if there is such a thing), consider all the other consequences that flow from having a criminal record.

And judge not…

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on April 2, 2013: Consequences of a criminal record

Watch your mouth!

Unless you have been living under a rock, you’ve seen a young male wear a t-shirt with an inappropriate or adult-themed expression or joke written on it.

 

If you are prude, you probably wondered, “How is that person allowed to wear that, legally?”

Or maybe you are like me and thought, “That t-shirt is inappropriate, but it shouldn’t be illegal.”

Or maybe you just wondered, “How far can we go in our ‘freedom of expression’?” Well, if you thought this, you’re in luck: that is the topic of this week’s column.

Section 2(b) of the Charter allows for freedom of expression. But, what’s an “expression”? Well, for clarity, an expression is any means of communication that has content and expresses a meaning.

I hope that you don’t think there should be a bunch of limits on what we can say. That would be stupid (and very un-Canadian).

Thankfully, we are allowed to say and express ourselves however we want! It’s a Canadian value that we should be very proud of (and we should work hard to preserve). We can say or write anything! (…almost).

Obviously, there are limits… So, what are those limits?

Well, this part of the law is technical and complicated. Reason: we have to be careful with limiting our freedom of expression. It’s a slippery slope to take away someone’s right to express themselves.

But, without getting too technical, here is the basic law: expressions that are not allowed (i.e. against the law) are those that are really obscene or promote hatred or are threatening to someone. Here are a few examples…

Consider this case: R. v. Keegstra, [1990] 3 SCR 697. In this case, Mr. Keegstra was an Alberta high school social studies teacher. He was an idiot. He taught his students that Jews are “treacherous”, “sadistic”, “money-loving”, and “child killers”. He said a pile of other stupid things, too. Thankfully, he was charged with the Criminal Code offence of promoting hatred against a group of people (see section 319(2)).

In the case, Mr. Keegstra argued that he was allowed to make these statements because he had ‘freedom of expression’. That argument failed and Mr. Keegstra was criminally convicted of promoting hatred.

It is also illegal to make threatening comments to someone. This is referred to as ‘uttering threats’. See section 264.1 of the Criminal Code. Basically, this section makes it illegal to tell someone that you are going to hurt them or their property. We’ve all heard these sorts of comments made, whether in a pub or in a school. They are illegal…don’t say them.

Here’s the bottom-line: next time you see a young man wearing a t-shirt with a lame joke written on it, be happy that you live in Canada (and no one is telling him to take it off).

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on March 19, 2013: Watch your mouth!

Can police search your home or car?

Several years ago, a friend of mine was stopped by a police officer for speeding. The officer should have just given her a ticket. But, he didn’t.

The officer asked her some very pointed questions about the contents of her vehicle, suspecting that she had some illegal items in her car. She indicated that she had nothing in her vehicle outside of some clothes, CDs and other personal items. But, that didn’t satisfy the police officer.

The officer asked her to exit her vehicle and then proceeded to search her vehicle. After searching it, NOTHING was found. The officer then got back into his car and drove away, leaving my friend to put her items back into her car.

I wonder if this is a regular event for British Columbians? I hope that it’s not. If you can’t tell from my tone, that officer shouldn’t have searched my friend’s car.

As I said in a previous column, police need to follow the rules: Batman, police, and lowering crime. So, what is the rule about police searching your belongings/property?

 

Well, here it is: Section 8 of the Charter protects everyone from police randomly searching the property in which you hold a reasonable expectation of privacy. But, what does “reasonable expectation of privacy” mean? What sort of property does that include?

Well, to illustrate, you hold a reasonable expectation of privacy over your house and over your car; they are private places for you. But, the same isn’t true for a friend’s car or a locker (in school); those places are not as private for you.

Here’s a further illustration: police cannot randomly show up at your home or pull your car over and start to search your belongings. That is NOT allowed. BUT, students in schools have a diminished expectation of privacy over their personal lockers. As such, random searches in student lockers are less likely to violate the rules.

So, when can police search your house or car? Well, in order for police to search something in which you have a reasonable expectation of privacy, they (typically) require a search warrant.

How are search warrants granted? Well, search warrants are granted only if there are solid grounds that an offence has been committed and a search will reveal evidence of that offence. So, before a search is undertaken, police have to jump through a bunch of hurdles (and that’s important and reasonable).

But, do police always have to get a warrant to search someone’s personal property? Short answer: no.

Police are occasionally allowed to search without a warrant if there is an imminent danger that evidence of a crime will be destroyed or if someone will be harmed. Police also do not need a warrant if the person (who is subject to the search) consents to the search. Police are also allowed to search a person after arresting them, which sometimes reveals drugs or weapons (or both).

So, what happens if police don’t follow these rules? Well, if they don’t, the evidence that is found in the search could be excluded from trial. If that happens, then the likelihood of a conviction (against the person who had the illegal items) shrinks SIGNIFICANTLY.

The law in this area is vast and equally complex. But, I have an expectation that all police know and follow these rules. I hope that I am not alone.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on March 5, 2013: Can police search your home or car?

Stalking your ex-girlfriend?

If you’re reading this column, you’ve probably been in a romantic relationship. And, if you’ve been in a relationship, you’ve likely had your heart broken. Maybe you were “dumped” or maybe you “did the dumping”…

 

Whatever happened, hopefully you were able to move on – and you were able to realize that there are other fish in the sea. But, not everyone realizes this and some people actually stalk their ex-partners after the relationship ends.

Now, there seems to be some confusion over whether or not stalking is illegal. Well, for those of you who don’t know, it is.

I recently watched a television show on Netflix (“Stalked: Somebody’s Watching”), detailing some American stories of stalking. In a few of the stories, the victims reported the incidents to police, but police “couldn’t do anything” because “no harm” occurred. That explanation was ridiculous – rest assured, stalking is ILLEGAL in Canada.

In 1993, Canada criminalized “stalking-type” behaviour. In criminal law, the technical term for “stalking” is “criminal harassment”.

The law was made in recognition that women are often stalked prior to being injured or killed. In a 1991 FBI study, it was found that 90% of women who were killed by their former husbands were stalked prior to their murders. Similar results were found in an Ontario study, looking at murdered women between 1974 and 1990.

Although you may have never experienced stalking first-hand, we’ve all seen stalking in Hollywood. David Letterman and Madonna, for instance, were both victims of obsessed fans. You may also recall that, in 1989, Rebecca Schaeffer, a television actress, was murdered at her Los Angeles apartment by an obsessed fan who had stalked her for two years.

So, what type of (stalking) behaviour is actually criminal in Canada? Well, it is against the law to harass someone to the point where it causes that person to fear for his/her safety. It can occur when someone is repeatedly followed or contacted, either directly or indirectly (i.e. through a 3rd party). It can also occur when someone sits outside of or repeatedly drives by the person’s home or workplace. Creepy stuff…

A lot of harm can result from stalking, even if someone is never physically injured. Victims of stalking often have DEEP emotional and psychological scars. They may resign from their job, change their name, or move cities. Victims may only wear shoes that they can run in or they may have unlisted telephone numbers for the rest of their lives. Some victims “jump” every time their home telephone rings.

After convicting a stalker, sentencing is very important: as, said above, stalking is sometimes a pre-curser to more violent crimes. Stalkers can be subject to jail. They can also be ordered to attend treatment programs, which are intended to help the stalker deal with loss and sadness. Not surprisingly, stalkers can also be ordered to “stay away” from their victims.

As you might have guessed, this topic is huge. I wish I could dig deeper into the law surrounding criminal harassment. But, I can’t.

So, in closing, if someone is following you or is causing you to be afraid, then do the smart thing: report it to police.

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on February 19, 2013: Stalking your ex-girlfriend.

Arrested? Right to lawyer?

Hopefully, you have never been arrested. But, maybe you have…

If you have been arrested, then you might already know a little bit about this week’s column topic: a person’s right to a lawyer (upon arrest).

You have probably seen it on television many times: someone is arrested and they are told that they have a right to speak with a lawyer. It sounds like an easy concept, right? Well, it isn’t that easy. Here it is (in a nutshell)…

Here is technical bit: section 10(b) of the Canadian Charter of Rights and Freedoms states that everyone who is arrested or detained (i.e. stopped for questioning by a police officer) is entitled to speak to a lawyer without delay (and is entitled to be informed of that right).

 

So, what does that mean? Well, here’s an example: Police believe that you committed a crime, be it murder, robbery, theft, or assault. Police attend at your home or your workplace and put you in handcuffs. At that point, police MUST inform you of your right to talk to a lawyer (for legal advice).

If you choose to speak with a lawyer (and why wouldn’t you?), then police must make that happen by giving you access to a telephone. Police must also tell you that you can speak to a legal aid lawyer (free of charge to you). Most provinces have set up a toll-free number, allowing people (who are arrested) to get legal advice on a 24-hour basis. As you can imagine, people are often arrested outside of “business hours”…

Now, before you speak to a lawyer (after you choose to), police CANNOT continue to question you, attempting to get statements or other evidence from you. After you speak to the lawyer, though, the police CAN continue with their questioning.

So, what happens if police continue with their questioning AFTER you choose to speak to a lawyer, but BEFORE you have had an opportunity to do so? Well, evidence (such as statements given by you to police) taken in violation of your right to a lawyer will generally be excluded (from being used at trial).

The purpose of section 10(b) is to address the HUGE vulnerability that people have when they are arrested by police (i.e. the state) and when they are deprived of their freedom/liberty. Such people are at risk of making self-incriminating (and potentially out-of-context/misleading) statements (and they should know that risk).

So, generally speaking, these are the rules. They aren’t incredibly difficult. They are important. And police need to follow them.

Before I end this week’s column, I want to address the often unfair and harsh judgement on those people who have been arrested or convicted of a criminal offence. Quite frankly, that judgement is totally UNFAIR.

I’ll explain…

There are two types of people who have criminal records:

  1. those who make a logical, business-like decision to break the law; and 
  2. those who merely want 20 seconds of their life back…

The VAST majority of those people with criminal records fall into the latter category (and deeply regret the mistake that they made).

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on February 5, 2013: Arrested? Right to lawyer?

Sexual assault explained

There are few crimes that cause more anger and fear than sexual assault.

Despite the intense emotion that it conjures up, few people know much about the crime of sexual assault. So, this is the topic of this week’s column.

To start, it seems like most people think the term ‘sexual assault’ refers to just rape (i.e. non-consensual sex). Well, it does refer to rape; but, the term includes much more than that…

 

Basically, sexual assault is a non-consensual TOUCHING of another person AND that TOUCHING has a ‘sexual nature’ to it.

So, how is it decided if the touching has a ‘sexual nature’? Well, in deciding that, the court/judge looks at the circumstances of the touching and considers, ‘would a reasonable person, watching the interaction between the two people, think that the touching was sexual?’ The judge considers several factors, such as the part of the body that was touched and the gestures/conversation that accompanied the touching.

And, for your information, a sexual assault can occur even if the person ‘doing the touching’ is not doing it for sexual gratification.

Consider this famous case: R. v. V.(K.B.), [1993] 2 SCR 857. In this case, a father was found guilty of sexually assaulting his three-year-old son when the father grabbed his son’s genitals. He grabbed his son’s genitals to try to deter his son from grabbing the genital region of adults, showing him how much it hurts. Clearly, there was NO sexual motive in this case. But, despite that, the father was guilty.

Obviously, the term ‘sexual assault’ includes a WIDE range of actions.

A sexual assault could include rubbing a piece of fruit against a stranger in the supermarket (in a creepy way). It could also include grabbing and twisting someone’s nipple (i.e. what children refer to as giving someone a ‘purple nurple’). It can also refer to groping and raping someone.

Clearly, it can be misleading when media outlets/journalists refer to an incident of ‘sexual assault’. To know what we are dealing with, it would be helpful to get all the facts…

Lastly, for your information, the sexual assault laws in Canada have not always been ‘fair’.

Before several legal changes, husbands were given ‘leniency’ when it came to sexually assaulting their wives. In other words, they were allowed to do it.

Also, the sexual reputation and experiences of the victims were often attacked. It was thought that a ‘less sexually experienced’ woman was more credible and more believable (when testifying against a rapist).

Also, before legal changes, there was a suspicion that if the victim did not report the sexual assault to the police right after the assault, then the victim was ‘making it up’.

THANKFULLY, these laws are different now.

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on January 15, 2013: Sexual assault explained.