Bad Sex Is Not a Sexual Assault

There is a difference between a sexual encounter that was awkward, regrettable, disappointing, or even upsetting — and a sexual assault. Canadian criminal law recognizes that difference. The Criminal Code does not criminalize bad sex. It criminalizes non-consensual sexual contact. These are not the same thing, and conflating them does a disservice to genuine complainants and to the people who are wrongly accused.

If you are facing a sexual assault charge and the allegation stems from an encounter that you understood to be consensual — however imperfect — you need a defence team that understands the current charging environment and knows how to dismantle a case built on revisionist history. Contact us to discuss your situation confidentially.

The Post-Ghomeshi, Post-#MeToo Charging Environment

Something shifted in Ontario’s criminal justice system after the Jian Ghomeshi trial in 2016 and the #MeToo movement that followed in 2017. The cultural conversation around sexual assault — driven by extensive media coverage in the Globe and Mail, CBC, and other outlets — was important and overdue. But it also produced a measurable change in how police and Crown attorneys approach sexual assault allegations.

Before this shift, many of the cases we now see routinely charged would never have resulted in a criminal prosecution. The complainant’s account would have been assessed by police and Crown screening, and in a significant number of cases, the conclusion would have been that the evidence did not support a charge — or that the conduct described, while perhaps unpleasant, did not meet the legal definition of a criminal offence.

That filter has weakened considerably. The institutional pressure on police to lay charges and on Crown attorneys to prosecute them has increased. Officers are understandably reluctant to be seen as dismissing a sexual assault complaint. Crowns are reluctant to be seen as withdrawing one. The result is a system that is now processing a volume of sexual assault prosecutions that includes a substantial number of cases where the evidence is thin, the credibility of the complaint is questionable, and the conduct described — when examined carefully — does not amount to a crime.

We say this not to minimize genuine sexual assault. We say it because we see these cases every week, and the people charged in them deserve honest, rigorous representation — not a justice system that treats the allegation as the conviction.

What the Law Actually Requires

Sexual assault under the Criminal Code requires proof beyond a reasonable doubt that sexual touching occurred without the complainant’s consent. Consent is defined under section 273.1 as the voluntary agreement to engage in the sexual activity in question.

The Crown must prove the absence of consent. The defence does not have to prove that consent existed — it has to raise a reasonable doubt about whether it was absent.

This is a critical distinction. In many of the cases we defend, the sexual contact is not in dispute. What is in dispute is whether the complainant consented at the time. Not whether they regretted it afterward. Not whether they felt uncomfortable in hindsight. Not whether they wish, weeks or months later, that they had made a different choice. The question is whether, at the time of the sexual activity, the complainant voluntarily agreed to participate.

Regret is not the absence of consent. Ambivalence is not the absence of consent. A failure to enthusiastically enjoy the experience is not the absence of consent.

Revisionist Consent: Rewriting History After the Fact

The most common pattern we encounter in weak sexual assault cases is what defence lawyers describe as revisionist consent — the complainant reinterprets a past sexual encounter through a different lens, often months or years after the fact, and concludes that what happened was non-consensual.

This reinterpretation can be triggered by a number of things:

• A new relationship — a new partner learns about a past encounter and reacts negatively, prompting the complainant to recast the experience
• Therapy or counselling — a therapist encourages the complainant to re-examine past experiences, and what was originally described as regrettable or uncomfortable becomes, through the therapeutic process, redefined as assault
• Social pressure — the cultural message that any sexual experience that was not entirely positive may have been an assault
• A falling out with the accused — the end of a friendship, a workplace conflict, or a social media dispute leads the complainant to reframe past interactions
• Family court proceedings — a separation, divorce, or custody battle creates a strategic incentive to characterize past sexual conduct as criminal. We discuss this pattern in detail in our companion article, A Bad Relationship Is Not a Sexual Assault

In these cases, the complainant is not necessarily lying in the conventional sense. They may genuinely believe, at the time they make the complaint, that what happened to them was an assault. But the law does not ask how the complainant feels about the encounter now. It asks whether, at the time, the complainant voluntarily agreed to participate in the sexual activity. And the contemporaneous evidence — text messages, social media posts, subsequent behaviour, the nature of the ongoing relationship — frequently tells a very different story from the one the complainant presents to police.

What “Bad Sex” Actually Looks Like

The cases we are describing have recognizable features:

• The parties knew each other. These are not stranger assaults. They involve dating partners, casual hookups, former partners, or acquaintances who met through apps or social settings.
• There was mutual initiation or participation. The sexual encounter was not one-sided. Both parties were active participants, even if the experience was ultimately unsatisfying for one of them.
• There was no force, threat, or coercion. The complainant was not physically overpowered, threatened, or coerced. They participated willingly at the time, even if reluctantly or without enthusiasm.
• The complaint is delayed. The allegation is made weeks, months, or sometimes years after the encounter — often triggered by one of the factors described above.
• The contemporaneous evidence contradicts the allegation. Text messages sent after the encounter are friendly, flirtatious, or neutral. The parties continued to communicate or see each other. There was no contemporaneous disclosure to anyone that an assault had occurred.
• There is a parallel motive. The complaint coincides with a relationship breakdown, a custody dispute, a workplace conflict, or some other interpersonal event that provides an alternative explanation for the allegation.

None of these features, individually, proves that the allegation is false. But taken together, they describe a category of case that the criminal justice system was never designed to prosecute — and that, prior to the cultural shift of the last decade, it largely did not.

How We Defend These Cases

Sexual assault cases built on revisionist consent require a meticulous, evidence-driven defence. We approach every one of them with the same rigour:

Comprehensive Disclosure Review

We obtain and analyze the full Crown disclosure package — every police statement, every interview transcript, every piece of forensic evidence. We identify what is there and, equally important, what is missing. Gaps in the investigation are often as revealing as the evidence itself.

Building the Real Timeline

The most powerful tool in these cases is the contemporaneous record — the digital trail that existed before the complainant decided to reinterpret the encounter. We work with our clients to gather and preserve:

• Text messages and dating app conversations before and after the encounter
• Social media posts, direct messages, and interactions
• Photos, videos, and location data
• Communications with third parties that reflect the complainant’s state of mind at the time
• Any continued contact or relationship between the parties after the alleged assault

This evidence tells the real story — not the revised version the complainant presents to police. See our guide on collecting digital evidence for how to preserve this material.

Credibility and the W.(D.) Framework

These cases almost always come down to credibility. There are no independent witnesses. The Crown’s case depends entirely on whether the judge believes the complainant beyond a reasonable doubt. The Supreme Court’s W.(D.) framework — which we discuss in detail in our article on being charged with no evidence — is extremely favourable to the defence in these circumstances.

The Consent Defence

Where the evidence supports it, we present a direct consent defence: the complainant did, in fact, consent to the sexual activity at the time. The contemporaneous evidence — the messages, the behaviour, the continued relationship — supports the conclusion that this was a consensual encounter that is now being recharacterized.

Honest but Mistaken Belief in Consent

In cases where the issue is ambiguity rather than clear consent, the Criminal Code provides the defence of honest but mistaken belief in consent under section 273.2. This defence requires that the accused honestly believed the complainant was consenting and that they took reasonable steps to ascertain consent. We carefully assess the evidence to determine whether this defence is available and how to present it effectively.

Cross-Examination

Effective cross-examination is the centrepiece of a sexual assault trial. We examine every statement the complainant has ever made about the encounter — to police, to friends, to therapists, on social media — and identify every inconsistency. We explore the complainant’s motive, their delay in reporting, their subsequent behaviour, and their credibility on every material point. This is detailed, painstaking work, and it is what separates a vigorous defence from a passive one.

For a discussion of how testimony works at trial, see our guide on testifying at your criminal trial.

The Consequences of a Conviction

The stakes in a sexual assault case cannot be overstated. A conviction can result in significant jail time, mandatory registration under the Sex Offender Information Registration Act (SOIRA), and permanent, irreparable damage to your reputation, career, and relationships. Even the charge itself — before any finding of guilt — can destroy a person’s life.

That is precisely why these cases demand the most rigorous defence available. A weak allegation should not produce a devastating conviction simply because the system has become reluctant to scrutinize the evidence.

The Bottom Line

Bad sex is not a crime. Regrettable sex is not a crime. Sex that one party later wishes had not happened is not a crime. The Criminal Code criminalizes non-consensual sexual contact — and the Crown must prove the absence of consent beyond a reasonable doubt.

If you are facing a sexual assault charge that you believe is based on a reinterpretation of a consensual encounter, you need a defence team that will examine every piece of evidence, build the real timeline, and hold the Crown to its burden of proof.

Facing a sexual assault allegation? Contact Mor Fisher LLP immediately for a confidential evaluation. Call 705-721-6642.