Toronto Sexual Assault Lawyers
Defending Sexual Assault Charges
The Criminal Code defines a sexual assault as unwanted touching of a sexual nature. Obvious examples include things like a kiss or intimate touching. Sexual assault charges can be laid even where the person has no sexual intention behind the touching.
Sexual assault is a serious offence. It carries a maximum punishment of 10 to 14 years in jail. In addition, all convictions for sexual assault will result in forced placement on the federal and provincial sex offender registries. The vast majority of convictions for sexual assault will also result in a DNA order being made against the accused.
Sexual assault cases have become among the most complicated charges to defend in court. Recent amendments to the Criminal Code have made it more difficult to obtain records and other evidence that might be essential to the defence, and to ask questions in cross-examination that intrude on the complainant’s privacy. These changes make it more important than ever to have an experienced lawyer who knows how to navigate the rules to protect your interests and advance a strong defence.
Sexual offences against children
Someone who is accused of committing a sexual offence against a child may be charged with sexual assault. The Criminal Code increases both the minimum and maximum penalties for sexual assault where the victim is under the age of 16.
In addition to sexual assault, however, the Criminal Code creates several specific sexual offences that apply when the alleged victim is a child:
Section 151 of the Criminal Code makes it an offence to touch someone under the age of 16 “for a sexual purpose”. This offence is arguably more serious than sexual assault, as it requires actual proof of a sexual intention on the part of the accused.
Invitation to Sexual Touching
Section 152 of the Criminal Code makes it a crime to invite, counsel or incite a person under the age of 16 to touch them for a sexual purpose. This crime isn’t concerned with whether the touching actually happened – it criminalizes any attempt to convince a child to engage in sexual activity.
Section 153 of the Criminal Code makes it an offence for any person who is in a position of trust or authority with a person who is between 16 and 18 years old to have sexual contact with that young person or to invite them to have sexual contact with them.
Defending sexual assault charges
(and what to do if you have been charged with sexual assault)
Sexual offence charges are often “credibility cases” – meaning that whether someone is convicted of assault usually depends on whether the evidence of the accuser is believed. This is why it is so important to have a good criminal lawyer with a lot of experience in these types of cases. Cross-examining a witness to poke holes in their story or to reveal contradictions, lies, and a motive to fabricate allegations takes skill and effort – and a cross-examination that isn’t well prepared will go nowhere and achieve nothing.
Aside from issues of credibility, consent is often an important defence to some sexual assault charges. In most cases involving adults, sexual contact is not a crime if it is consensual. This means that the Crown must prove there was no consent beyond a reasonable doubt. If the accused can raise a reasonable doubt about whether the contact was in fact consensual, he will be entitled to an acquittal. There are some cases where a defence that relies on consent can become complicated and difficult, especially those cases that involve the consumption of alcohol or drugs before the sexual contact occurred.
The other important defence related to consent is referred to as “mistaken belief in consent”. An accused person can only be convicted of sexual assault if they knew the other person was not consenting to the touching that occurred. If an accused can raise a reasonable doubt about whether he believed the complainant was consenting, he will be found not guilty. This defence has been complicated by amendments to the Criminal Code that require anyone who wishes to rely on this defence to establish that they took “reasonable steps” to ascertain whether the complainant was in fact consenting to the sexual activity.
Frequently asked questions about sexual assault charges
What is the age of consent in Canada?
Section 150.1(1) of the Criminal Code sets the age of consent in Canada at 16. However, there are some important qualifications to this. First, in the case of people who are between 16 and 18, the Criminal Code still criminalizes anyone who has sexual contact with them while they are in a position of trust and authority over the young person (see the definition of sexual exploitation, above).
Second, where a young person is 14 or 15 years old, they can consent to sexual activity with someone who is less than five years older than the young person. If the accused person is 18, for example, it means that the age of consent is 14. If the young person is 12 or 13 years old, section 150.1(2) of the Criminal Code says that they can consent to sexual activity with someone who is less than two years older than them (i.e. 14 or 15 years old).
How long does someone convicted of a sexual ofence stay on the sexual offender registry?
There are two sex offender registries that someone convicted of a sexual offence in Ontario will be forced to register on. One is provincial and the other is federal. At a minimum, the registration will be for 10 years. If the accused is convicted of an offence where the maximum possible term of imprisonment is 10 or 14 years imprisonment, the registration is for 20 years. If the maximum possible term of imprisonment for the offence is life, then the registration is for life as well. In addition, anyone who is convicted of more than one sexual offence is placed on the registry for life.
What is the punishment for sexual offences in Canada?
The punishment for sexual offences in Canada varies a lot and depends on the facts of the case and the background of the person who has been convicted. Some sexual offences carry mandatory minimum jail sentences, although the courts have found a number of these minimum sentences to be unconstitutional. Nonetheless, any convicted of a sexual offence in Canada, especially one involving a child, runs a significant risk of imprisonment upon conviction. In cases where a sentence will be imposed for a sexual offence, having a good defence lawyer to put together the strongest argument for a fair and lenient sentence is invaluable. Doing a good job at a sentencing hearing is a lot of work. It requires legal research, reference letters, and reports that are all designed to show the sentence you are asking for is in the public interest.
Our experience with sexual assault charges
- R. v. J.D. (Ontario Court of Justice, Toronto): The client was charged with sexual assault. The defence was that the sexual touching was consensual, and that a complaint was made only after the accuser because worried their significant other would find out about his unfaithfulness. After the cross-examination of the complainant at trial, the Crown conceded the frailties in its case made it impossible to prove the charges beyond a reasonable doubt and invited the Court to acquit the accused.
- R. v. D.C. (Ontario Court of Justice, Burlington): A teacher was accused of more than 25 sexual offences against 14 different students. The defence at trial was that rumours and collusion among the students had generated false stories of sexual misconduct by the teacher. After a four week trial, the teacher was found not guilty on all counts.
- R. v. L.E. (Superior Court of Justice, Thunderbay): A retired school principal was accused of sexual offences by three different accusers, dating back to the 1980s. One of the complainant’s was the client’s ex-wife, and another was a former student. The client was acquitted of all charges after a trial.
- R. v. R.P. (Ontario Court of Justice, Scarborough): A teacher was accused of more than 15 offences against eight different students. After negotiations, all but six of the charges were dropped before trial. The defence at trial was that collusion among students interested in getting the teacher fired led to false accusations being made against him. After a trial, the teacher was acquitted of all counts.
- R. v. F.D. (Ontario Court of Justice, Newmarket): A teacher was accused of sexual assault against a student. At trial, the cross-examination of the complainant showed that the allegations were implausible and unlikely to have occurred in the way they were described. The teacher testified and, after closing submissions, was acquitted on all counts.
Disclaimer: Every criminal case depends on its own unique set of facts and legal issues. Past success does not mean the same result can be obtained in future cases. We look at each case individually and base our approach on the specific challenges it presents.
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