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Criminal Charge

Sexual Assault

Table of Contents

Sexual Assault Charge Overview

The term “sexual crime” is an umbrella categorization that governs many types of sexually related charges that involve violence and aggression. Sexual assault is a specific type of offence, and it can be defined as any form of sexual contact imposed on a person without their consent or free will.

The term “rape” is not used in the Canadian Criminal Code to lose the moral stigma attached to it and highlight the violent nature of the crime. The change in terminology to Sexual Assault also provides for more specific charges to be filed depending on the facts and circumstances (if a weapon was used, threats, etc.)

Types of Sexual Assault Charges

Sexual Assault is any assault of a sexual nature that violates the victim. It involves a sexual act that takes place without the consent of the victim. Depending on the nature of the sexual assault and aggravating factors, the charge includes:

  1. Common Sexual Assault
  2. Sexual Assault Causing Bodily Harm
  3. Aggravated Sexual Assault

Criminal Code Definition of Sexual Assault

According to section 271 of the Criminal Code:

Everyone who commits a sexual assault is guilty of

  • (a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
  • (b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

In summary, the Criminal Code defines the criminal offence of sexual assault as follows:

  • Applying force intentionally and without the consent of another person
  • The force used has to be applied in a sexual context (as compared to, for example, a “simple” assault such as a punch)

Sexual Assault Penalties and Consequences

Sexual assault is a serious offence usually punishable with jail time and can carry a penalty of up to ten years or 14 years’ incarceration depending on the severity of the crime and the age of the victim.  While studies show that women are at greater risk of being sexually assaulted, no particular race, creed, age, or gender is exempt from this act of violence.

Charge Range Minimum Sentence Maximum sentence
Sexual Assault If the victim is younger than 16 years old 1 year imprisonment 14 years imprisonment
Sexual Assault If the victim is over 16 years-old No mandatory minimum sentence  10 years imprisonment
Sexual Assault Causing Bodily Harm With a restricted or prohibited firearm 5 years imprisonment for a first offence or 7 years for a second offence 14 years imprisonment
Sexual Assault Causing Bodily Harm With a non-prohibited firearm and relating to a criminal organization 5 years imprisonment for  a first offence or 7 years for a second offence 14 years imprisonment
Sexual Assault Causing Bodily Harm With using a non-restricted firearm 4 years imprisonment 14 years imprisonment
Sexual Assault Causing Bodily Harm If the victim is younger than 16 years old 5 years imprisonment Life Imprisonment
Aggravated Sexual Assault With a restricted or prohibited firearm 5 years imprisonment for a first offence or 7 years for a second offence Life Imprisonment
Aggravated Sexual Assault With a non-prohibited firearm and relating to a criminal organization 5 years imprisonment for  a first offence or 7 years for a second offence Life Imprisonment
Aggravated Sexual Assault With using a non-restricted firearm 4 years imprisonment Life Imprisonment
Aggravated Sexual Assault If the victim is younger than 16 years old 5 years imprisonment Life Imprisonment
Charge Minimum Sentence by Indictment Minimum Sentence by Summary Conviction Maximum sentence by Indictment Maximum sentence by Summary Conviction
Sexual interference 1 year imprisonment 90 days imprisonment 14 years imprisonment 18 months imprisonment
Invitation to Sexual Counselling 1 year imprisonment 90 days imprisonment 14 years imprisonment 2 years imprisonment
Sexual Exploitation 1 year imprisonment 90 days imprisonment 14 years imprisonment 2 years imprison

An accusation of even a lower level sexual assault such as briefly touching a person’s buttocks can ruin your reputation as well as your personal and professional life. It can stop you from completing your education. If an accusation becomes a formal charge, you might not be able to recover some of these aspects of your life. Your innocence must be proven to give you the best chance to pick up the pieces and move forward.

Sex Offender Registry

Anyone convicted of a sexual assault will be placed on both an Ontario and national sex offender registry for 10 years, 20 years or life, depending on the nature of the sexual crime they committed. A person who has been placed on the registry has ongoing reporting obligations and will be required to follow the rules of the registry. While not public, this list is accessible by the police and can have a severe negative impact on your future.

How to Win a Sexual Assault Charge

Our goal is to assess your case and develop a fact-based strategy to protect your freedom and reputation. In building your defence strategy, we will use our experience and knowledge to:

  • Examine the circumstances in which the event happened to expose any inconsistencies, improbabilities or motives to lie that work in your favour
  • Create reasonable doubt at your trial by cross-examining the complainant and challenging their credibility and reliability
  • Determine which strategy works better in your favour in terms of establishing the defence of consent or mistaken belief in consent
  • Assess whether your constitutional rights have been violated
  • Prepare you to testify at trial
  • Advocate on your behalf with the crown and in court to minimize your sentence in the case you choose to plead guilty

Assuming you wish to resolve your case and plead guilty, we will effectively negotiate the lightest possible sentence based on your background and the facts of your case. We believe that everyone deserves the best possible legal representation, no matter whether you are innocent or admit that you have committed a crime. 

How to Get a Sexual Assault Charge Dropped

If the sexual assault charge against you is a minor offence, you might be able to have the charge dropped. This largely depends on the particulars of your case and whether you have a prior criminal record. In general, there are two situations when you might get the charge dropped without going to trial.

  1. The Crown has reviewed all of the evidence, and they don’t feel that there is a reasonable prospect of conviction.  
  2. The victim is psychologically unable to testify and the crown agrees that it is not in the victim’s or societies’ best interests to proceed with the charges in light of this. 

How to manage False Allegations of Sexual Assault

Speed and efficiency are vital if you want to successfully confront the sexual assault allegations ahead of you, whether they are true or false allegations. You must protect yourself and plan your defence right from the moment you suspect you are being investigated. As you navigate your way through the legal process, you need to proactively take the following actions:

  • Immediately hire a sexual assault defence lawyer with extensive experience in this particular practice area.
  • Comply with all of the lawyer’s requests.
  • Write down an accurate account of the events that transpired. You must provide as many relevant details as possible. Do not share your version of events with anyone except your lawyer.
  • Compile a list of any witnesses who can verify your account of the events at the time of the alleged assault.
  • Gather all relevant social media, text messages, emails or other documentary evidence etc. and provide them to your lawyer at the outset of your case
  • Do not speak with the police at any time. Facing false allegations is an emotional time, and most people seem to mistakenly think that if they co-operate with the police by answering their questions or share their version of events with the police, this will somehow help them. However, if you make the mistake of talking to the police, any information you offer can be used against you in court and even a truthful witness will invariably not be able to keep their story straight and will omit key details.

Sexual Assault Judicial Process

After you are arrested, you will have your first court appearance, which will typically take place about three to six weeks down the road.  However, there is no hard and fast rule regarding the timing of your first court appearance and it may take longer than this.

The next step is for your lawyer to attend anywhere from three to four remand appearances. This is when your lawyer is gathering information, receiving the disclosure (i.e. the witness statements, police reports/notes, forensic evidence etc.), has multiple meetings with you to provide a legal opinion and review your version of events and outline the defence strategy and have one or more meetings with the Crown. 

Assuming you have elected to be tried in the Ontario Court of Justice, the next step is to have a juridical pre-trial (i.e. a meeting with a judge to review your case).  After completing a judicial pre-trial, your lawyer will then be in a position to set a trial date.   Most sexual assault trials take multiple days in court and more complex cases can often take 7 or more trial days to complete.  Our criminal trial courts in Ontario are very busy and your trial date will be set many months down the road. 

If your trial takes place in the Ontario Court of Justice, your trial could take place up to 18 months from the date of your arrest.   If your trial is conducted in the Superior Court of Justice, it could take up to 36 months from the date of your arrest to complete your trial depending on the county you were charged in (i.e. smaller counties are usually less busy than larger jurisdictions) and the complexity of your matter.     

Sexual Assault Myths

There are many unfortunate and lingering myths surrounding sexual assault, and a few are listed below.

  • Sexual assault comes from an uncontrollable urge of passion (In fact, it is a crime of violence)
  • Husbands cannot rape a woman they are married to
  • Men cannot be sexually assaulted
  • When a woman says no, what she really means is yes
  • Women falsely report rapes quite often
  • Rape is a fantasy of many women, and they get pleasure from the act

Through research, these beliefs have been dispelled.

  • In Canada before 1983, rape was only recognized as a crime outside of marriage. A wife could charge her husband with various lesser penalties of assault, but not rape. Bill C-127 came into effect in Canada’s Criminal Code, allowing a woman the right to charge her spouse with sexual assault, sexual assault causing bodily harm or aggravated sexual assault. The United Nations High Commissioner for Human Rights stood against violence towards women in 1993 and condemned marital rape, and it is now considered a human rights violation.
  • All men regardless of their sexual orientation can be sexually assaulted (more commonly by other men, but it is not unheard of for a man to be sexually assaulted by women)
  • Consent is paramount in any sexual encounter. If someone says no or they are not consenting in their actions or body language, they have the right to press charges if they feel forced into engaging in any sexual act. “No” in fact always means no.
  • Statistics show that the percentage of falsely reported sexual assaults is relatively low, as is the case with other crimes.  However, false sexual assault allegations can and do occur. 

Sexual Assault Lawyer in Ontario

If you or someone you know has been charged with sexual assault, sexual interference, invitation to sexual touching, sexual exploitation or any other type of criminal offence, call us as soon as possible. Your initial consultation is free, and we provide you with a judgment-free service that can help you get your life back together.

Your reputation and livelihood can be negatively impacted if you are charged or convicted.   Our lawyers have extensive experience in successfully representing our clients and will gladly extend our services to you.

Kruse Law Firm offers free online consultations with our Sexual Assault lawyers to answer your questions and explain how we will guide you through the court process and present your best defence. Fill out the brief online form or call us today to get started.

Read more about Sexual Assault charges or browse through our Criminal Law video library.

FAQs about Sexual Assault

Sexual Assault is any act that violates the victim’s sexual integrity. Sexual assault is non-consensual and does not depend on any specific part of the human body. A non-consensual sexual act is anything that lacks consent—or the voluntary agreement of all parties involved.

For most sexual assaults, you are absolutely facing a jail term and often a very significant jail term. There are a wide range of sexual crimes which escalate in severity, ranging from sexual assault, to sexual assault causing bodily harm to aggravated sexual assault.  There are also mandatory minimum jail terms for sexual crimes involving young persons, including sexual interference, invitation to sexual counselling and sexual exploitation.  The most serious forms of sexual assault can attract up to life imprisonment. A skilled lawyer can often either win your case or if you decide to plead guilty, negotiate the lightest possible sentence for the facts of your case and based on your personal background.

The Canadian Criminal Code sets out lengthy mandatory minimum jail sentences if the victim is below the age of consent.   The length of the mandatory minimum jail term will also depend on whether the crown elects summarily or by indictment. 

For example, if a victim of sexual assault is younger than 16 years old, and the Crown Attorney elects to proceed by indictment, the mandatory minimum sentence is one year in jail. 

If the Crown Attorney elects to proceed summarily, the minimum sentence is six months in jail if the victim is under 16 years old.  

If a victim of sexual assault is older than 16 years old at the time of the crime, there is no mandatory minimum sentence.   However, the high sentencing ranges in Ontario and Canada almost always dictate that if a person is convicted of sexually assaulting a person over 16-year age, they are usually facing a jail term and in more serious cases a very lengthy jail term. It is only in rare cases and for very minor sexual assault charges (such as a fleeting touch of a person’s buttocks), that a convicted offence may be able to avoid a jail term.

Our firm represents many individuals charged with sexual assault, and a very common defence that they raise is they say that the alleged victim consented to the sexual activity in question. However, the alleged victim claims that the sexual act was not consensual.   The police did an investigation, and they received a statement from the victim alleging that they were sexually assaulted.  If our client advised us that the victim consented, we have to consider two possibilities in formulating a strategy to win the case as follows:   

  1. a) that the victim is not being truthful (i.e. during the trial of your matter, we will be challenging their “credibility” or believability as a witness).  
  2. b)  the alleged victim’s perception of events is not accurate which could be due to a number of factors (i.e.  we will be challenging their “reliability” at your trial).

You will have no choice but to defend this type of case. The prosecution will not just drop the charges because you state that the person consented to the sexual encounter or you claim they are making it up or are mistaken or not reliable.  However, if it is just your word against the complainant, these types of charges are always defendable. Our experienced lawyers very often win a “he said/she said” sexual assault charge by creating a reasonable doubt resulting in the charges being dismissed.   An accused is always presumed to be innocent.   The burden of proof is on the crown to prove a sexual assault charge beyond a reasonable doubt.  A good criminal lawyer can often effectively cross-examine an alleged victim and to show that they are not a credible or reliable witness. 

First of all, under Canadian law, you are presumed to be innocent. The burden of proof is always on the Crown has to prove the case against you beyond a reasonable doubt. In a civil law suit, the burden of proof is merely to a balance of probability or who is more likely telling the truth.   In criminal trial, reasonable doubt is far closer to absolute or mathematical certainty than it is to a mere balance of probability.   

 

Therefore, you can see how a good criminal lawyer can win many sexual offence cases when it is just a “he said/she said” case and there are no other direct eye witnesses to confirm or refute the allegations Conversely, if there is other powerful evidence against you, for example, if you confessed to the crimes during your police interview and we cannot exclude your confession at trial, you are not likely going to win your case.   Most of our clients who have been charged with sexual assault, deny the allegations and proceed to trial.  For various reasons, including our experience, skill set and that fact it is usually a he said/she said type of case, we have won a very high percentage of our sexual assault trials over many years.  

Bill C-51 was passed by Parliament in 2018 and declared law in Canadian criminal law. s. 278.92 of the Criminal Code now requires defense counsel to bring an application to attempt to introduce private records of a victim into evidence.    This new law was seen as a direct response to the public outcry as a result of the Jian Ghomeshi trial where defence counsel effectively used private messages of the complainants to challenge their credibility and veracity.  Many viewed this as unfair as the alleged victims were caught by surprise at the trial and ultimately the inconsistencies between their testimony at trial and their private messages, was one of the reasons why Mr. Ghomeshi’s charges were dismissed. 

  1. 278.92 states that if  a  person charged with  sexual crimes, including sexual assault, is in possession of any private communications or records of the complainant (i.e. the alleged victim)  which they want to  use at the trial to  challenge the victim’s  credibility or reliability, this new  law requires  defence counsel to hand over this material to the crown, complainant  and court  before the trial to receive   a ruling regarding whether the private record  can be used by the defence at the accused’s trial.   These types of records include the complainant’s private information, emails, text message, Face book messages, social medial, electronic records, photographs etc. 

This section of the Criminal Code makes any private record of the alleged victim of a sexual crime (i.e. text messages, social media, photographs, emails etc.) presumptively inadmissible unless a judge specifically orders that the evidence can be used as evidence at trial.  

As an example, assume an accused of sexual assault, has a text message from the alleged victim, stating that she or he lied about being sexually assaulted and in fact the sexual encounter was consensual.  This would be very powerful evidence which would probably in most cases lead to the accused’s charges being dismissed at trial.   Prior to the introduction of s. 278.92 of the Criminal Code, the defence lawyer did not have to disclose this powerful and contradictory evidence before the trial and would probably have strategically keep it in their back pocket.  They would have effectively confronted the complainant for the very first time at the trial to show that they were not a credible witness.   

Under the new law, the defence lawyer is required to serve an application on the crown and the victim before the trial, with a view hopefully receiving an order from the judge that the prior inconsistent statement is admissible. Of course, the great disadvantage to this requirement for “reverse disclosure” is that the defene lawyer has lost his or her strategic advantage of the element of surprise and the complainant can craft an appropriate answer well before the trial to attempt to explain away the inconsistency.   

There is a big difference between being able to surprise a witness with a powerful piece of evidence which contradicts their evidence and leaves them speechless and unable to respond at trial, versus providing them with the material several months before the trial so that they can come up with a clever explanation to effectively explain away an inconsistency.   The new law is great if we assume all people charged with a sexual assault or a sexual crime are in fact guilty.  However, some legal commentators feel it will lead to miscarriages of justice if for example, a complainant is actually lying about being sexually assaulted and now has weeks or months to   plan how to effectively explain away contradictory private records.

Properly defending a client on any sexual assault charge involves a lot of careful and detailed legal work.  It is difficult to provide an exact estimate regarding the number of hours of work a good criminal lawyer will take to properly defend a sexual assault case.   Every case is different ranging from a minor sexual assault to a complex factual situation.  However, our firm’s experience has shown that even the most minor sexual assault charge could take up to 150 hour of legal work.  For more complex legal and factual cases, it could take several hundred hours of detailed legal work, if not more.  Diligent, focused and competent preparation are the keys to winning sexual assault cases, including properly preparing the client to testify which can take 10-15 or more hours by itself.   

A court can order a publication ban that limits what media outlets may or may not publish. For example, an accused is entitled to request a publication ban regarding the evidence presented by the Crown at a preliminary hearing. However, publication bans do not generally prevent the media from reporting that you have been charged with a particular type of criminal offence.   The media is also allowed to report about the actual evidence at trial of an alleged sexual crime. The only exception at the trial is that a publication ban will prevent the media from publishing the name of the complainant or any evidence that would potentially reveal the complainant’s name.

In Canada, sexual activity is only legal when both parties consent. Canada has a broad definition of sexual assault, and all unwanted sexual activities fall under it. There are certain conditions in which a person is considered to be non-consenting by default, such as:

 

  • The person is unconscious;
  • The person shows any sign of non-consensual behaviour, i.e. doing or saying something to avoid a sexual activity;
  • The person is only consenting because the other person is abusing a position of trust, power or authority;
  • Another person is consenting on the person’s behalf; or
  • The person shows any sign of non-agreement after the sexual activity has already started.
  • The law also considers silence or passivity as a sign of non-agreement unless it is very clear from the person’s active participation and body language that they are in fact consenting

Under the Criminal Code, the age of consent for sexual activity in Canada is 16 years. The age of consent was 14 years prior to May 2008 but was raised in the Tackling Violent Crimes Act.

Defending sexual assault cases is an area that we have spent a lot of time focusing on for over 30 years.  We are passionate and committed to defending these types of case.  We believe that if a person who is charged with a sexual crime maintains they are innocent, they deserve to have the best possible legal representation with a view to creating reasonable doubt to try and win their case. People deserve to be properly defended against the government who is trying to take away their freedom.  For those who are truly guilty, they do not deserve unreasonable and crushing jail terms, but a fair sentencing in keeping with the established range of sentences in Ontario.    Our lawyers also embrace the fact that everyone deserves a second chance in life. 

Contrary to what seems to the popular belief of a lot of people in society, not everyone charged with a sexual crime is guilty. People come to us and say they did not do it and are innocent.  Our job as defence lawyers is to defend them to the best of our ability.   We   always take our responsibility seriously and bring everything we can to the table in every case we do within the bounds of legal ethics and the rules of the court.  This is who we are. This is what we do.    This is the same promise and guarantee we make to every one of our clients.