What Is Sexual Assault With a Weapon?
In the Criminal Code of Canada, the crime of sexual assault with a weapon, threats to a third party, or causing bodily harm is defined as follows:
272 (1) Every person commits an offence who, in committing a sexual assault,
- carries, uses, or threatens to use a weapon or an imitation of a weapon;
- threatens to cause bodily harm to a person other than the complainant;
- causes bodily harm to the complainant;
- (c.1) chokes, suffocates or strangles the complainant; or
- is a party to the offence with any other person.
You'll note that a weapon does not actually have to have been used during the sexual assault to charge you with this offence. You can be charged if you carried or threatened to use one. To meet the standard required for this charge, it's enough to show that in committing a sexual assault, you threatened to use a weapon.
A person can also be charged with this type of offence, even if a weapon is not used, if it is alleged that they committed a sexual assault and caused bodily harm, choked, suffocated or strangled the complainant (i.e., the alleged victim). The "threaten to cause bodily harm" to a third person allegation refers to an assailant who threatens to harm a person other than the alleged victim in order to get the victim to comply. Being a party to an offence means that you aided or encouraged a person who committed the crime.
Penalties for Sexual Assault With a Weapon
If convicted, you face serious penalties, including up to 14 years in prison. If the complainant is under 16 years of age, you will face a mandatory minimum five-year jail term and a maximum of life in prison. If a non-restricted or non-prohibited firearm is used while committing the offence, you face a minimum sentence of four years and a maximum of 14 years imprisonment. If a restricted or prohibited firearm is used while committing the offence, you will face a mandatory minimum five-year jail term and a maximum of 14 years in prison.
In addition to these penalties, a person convicted of sexual assault with a weapon will face the following mandatory and discretionary orders.
- Weapons prohibition order. This order is mandatory on conviction for sexual assault with a weapon. The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive." The person is prohibited from possessing weapons for ten years after being released from custody. In the case of restricted and prohibited firearms and devices, the ban is for life.
- DNA order. This order is mandatory on conviction. The person must provide a sample of their DNA, which will be uploaded to the national DNA database.
- SOIRA order. The person's name will be added to the Sex Offender Registry for a minimum of 20 years.
- Section 161 order. If the victim is under 16 years of age, a judge may order that the person is prohibited from being in areas where people under the age of 16 are present or can reasonably be expected to be present. These locations include daycare centres, schools, playgrounds, community centres, etc. The order comes into effect after the person has been released from custody.
- Delayed parole order. The court may order that the person is required to serve at least "one-half of the sentence or ten years, whichever is less" before being eligible for parole.
Defending a Sexual Assault With a Weapon Charge
The consequences of a conviction for sexual assault with a weapon are severe and life-changing. This is not a charge you want to just plead guilty to in order to get it over with. It requires a vigorous defence from an experienced criminal defence lawyer.
The burden of proof rests with the Crown. They must prove beyond a reasonable doubt that the crime occurred and that you are guilty of the offence. Your lawyer will receive all of the evidence (i.e., 'disclosure') from the Crown regarding the complainant's version of events (video statements, police occurrence reports, police notes, other witness statements, physical evidence, electronic or social media evidence, photographs, search warrants etc.). Your lawyer will then carefully review the Crown's case with you and receive your full version of events during many meetings, with a view to creating reasonable doubt to win your case. These types of charges are very complex and typically require hundreds of hours of focused legal work by an experienced and skilled criminal defence lawyer in order to successfully defend you. Some of the many factual and legal strategies your lawyer might take include, but are not limited to, the following:
- Challenging the complainant's version of events in court by showing they are not a credible or reliable witness
- Establishing that the complainant had consensual sex with you and is fabricating the allegation
- Establishing that the complainant had a motive to lie and there is a reasonable doubt that you did not commit the offence
- Considering whether the police violated your constitutional rights when you were arrested, searched or questioned, to determine if any evidence can be excluded at trial, such as a statement you provided to the police or the results of a search warrant
- Challenging the charges by examining the Crown's evidence naming you as the culprit. Has the complainant properly identified you pursuant to proper, court-approved identification procedures, and can this be proven beyond a reasonable doubt? Do the police have fingerprint or DNA evidence? Fingerprints at the scene could have been placed at any time, and DNA doesn't necessarily mean a sexual assault occurred.
- Questioning your whereabouts—the charge must stem from something that occurred at a specific date, time, and location. The complainant or other direct or circumstantial evidence must place you at the alleged scene of the crime. Do you have any evidence that puts you somewhere else at that time, such as employment records, camera surveillance, cell tower location data, store receipts or credit card slips etc.? Can one or more credible witnesses verify your 'alibi' that you were someplace else at the time of the alleged crime?
The Crown must prove a sexual assault occurred using the complainant's version of events and any physical evidence that might exist. Your lawyer will review this evidence to consider whether there is anything that can be disputed or challenged in court and whether you can create a reasonable doubt and win your case. In addition, this specific charge hinges on the presence or threat of a weapon. The Crown has to prove the weapon or threat existed at the time of the offence. If you never owned or possessed the weapon mentioned in the complaint, it is crucial evidence for the court to hear.
Even if you have no defence to the charges and admit you are guilty and want to resolve the charges for the lightest possible sentence, a good criminal lawyer can often get the charges reduced or minimize the amount of time you will spend in jail.
Contact an Experienced Ontario Sexual Assault Lawyer for Advice
Do not jeopardize your freedom or your future if you have been charged with sexual assault with a weapon or any type of sexual crime allegation. The experienced and knowledgeable sexual assault defence lawyers at Kruse Law will work diligently to ensure your case has the best possible defence. Schedule a free meeting and quote, or call us toll-free at 1-800-699-0806 to speak with one of our professionals today.