Charged with a sex crime? Call a lawyer, say nothing to police
By Rob Lamberti, AdvocateDaily.com Contributor
A person charged with sexual assault should always speak to their lawyer before saying anything to investigators, Toronto criminal lawyer Laurelly Dale says.
Dale, principal of Dale Law Professional Corporation, says an accused faces a tumultuous upheaval in their personal life as investigators gather information against them, so silence would be a virtue.
“The default for every human being is to defend themselves. You want to deny and explain why that person is lying or why it’s not possible for you to have done this,” Dale tells AdvocateDaily.com.
“At that moment, it’s entirely reasonable to have that mindset but you need to take a step back and realize the severity of what you’re facing and get legal advice,” says Dale, who spoke in general terms.
She says sex assault cases — ranging from unwanted touching to aggravated sexual assault — make up more than half of her practice. She says, on average, she takes on a new file every three weeks.
Dale says she believes the number of sex assault-related cases has increased because of the #MeToo movement and new federal legislation in Bills C-51 and C-75.
The presumption of innocence — a cornerstone of the criminal justice system — appears to no longer be sacrosanct in sex assault accusations, she says. “Unfortunately in the #MeToo age, I think that has fallen low in the hierarchy of what society cares about,” Dale says.
“I think Crown policy and police procedures have changed dramatically to reduce their discretion in determining whether to proceed with charges,” she says. “I’m seeing many charges and I’m hearing from many Crowns that it’s out of their hands when they’re dealing with these types of criminal complaints.”
Crowns are generally more reluctant to approve bail, frequently request unreasonable sentences in terms of resolutions, and “there’s much deference given to inconsistencies and weaknesses in their cases,” she says.
“I see false accusations all the time, for various reasons, and those who make them are going to do the most damage to the #MeToo movement,” she says.
“The power of an accusation with respect to sexual assault is more profound than any other crime in the Criminal Code,” Dale argues. “You just can’t say someone murdered whomever and have them automatically arrested for homicide. There has to be some sort of corroborating evidence and there has to be an investigation.”
Dale says the first step after being charged with sexual assault, or if a person believes they will be charged, is to get a lawyer.
“You should always be afforded the right to speak to counsel of your choosing,” she says. “If the situation is that the police are at your door to arrest you for this, immediately phone a lawyer.”
Dale says its likely defence counsel will advise clients not to provide a statement.
“Do not provide information to an investigator, an employer, anyone who is asking you about this, without first speaking to a lawyer,” she says.
“If police are arresting you, in their opinion, they have reasonable and probable grounds,” Dale says. “You certainly don’t need to provide a defence to them nor are you required to explain your side of the story. And more importantly, they’re not your friend.”
Investigators are gathering information and evidence with the intent of using it in court, she says.
“The only friend you have is your criminal defence lawyer,” Dale says. “They will be the only person looking out for you. You should also tell your family and friends not to speak to anyone without first contacting counsel.”
She says if a person hears through the grapevine that there’s an investigation involving them, they should ensure all of their data, including text messages and any sort of email communication, is preserved
“Don’t delete anything and ensure you contact legal counsel at that time,” Dale says.
A person needs to preserve whatever evidence there is to defend themselves.
Depending on the timing or circumstances, she says she has met with the accused at the police station, “but most likely I speak with clients ahead of time and walk them through what to expect.
“It can be a very frightening process, particularly if you’re accused of what society considers to be the most horrific crime committed against another human being,” Dale says.
“Then you need to look at the other things to consider,” she says. “Are you in a position of trust with children that may be impacted because of these charges? Are you a teacher? Do you work for the federal government? Do you have any obligations to your employer?”
She says an accused may have to speak to an employment lawyer to determine their best options.
“You may need to speak to your union rep,” Dale says. “You want to make sure you don’t run afoul of any other regulatory body or obligation by simply having been charged.”
A bail plan is also a priority if charged with a sexual offence, she says, probably with a surety by someone considered appropriate. If a surety isn’t possible, there are bail supervision programs available, she says.
“I can’t emphasize how much of a change in their lives it would be when they’re accused of a sex assault. Eventually your friends and family are going to hear about it,” Dale says.
“You will need to take a proper accounting of your assets because you will need them later for judicial interim release purposes and to retain counsel.
“Be prepared to spend one to two years of your life dealing with this, possibly more, and you need to take into account your life will change,” Dale says. “You’ll discover who your true friends are to support and help you, but everything will be different.”