Frequently Asked Questions
What are the Most Relevant Rights an Accused Can Exercise in a Sexual Assault Case?
The most relevant rights for a person accused of sexual assault can be found under s. 10 of the Canadian Charter of Rights and Freedoms. These rights come into effect once anyone has been arrested. The two main rights in that section that are often utilized in sexual assault cases are the right to be informed of the reason for arrest and the right to counsel. Properly exercising these rights can have a major effect on how a charge progresses.
When an accused is informed of the reason for their arrest, they will be provided with the specific allegations against them, who the complainant is and when the offence is alleged to have occurred. This information is key in making sure that the accused is aware of the full scope and seriousness of the charges against them and allows them to have meaningful conversations with a lawyer if they choose.
The right to counsel entitles a person to contact a lawyer, such as our counsel in Kitchener, before they are questioned by police. A lawyer will inform the accused on how to best take advantage of their rights and prepare them for what they are about to face. This can be especially crucial in sexual assault cases because the police may have limited evidence available and will be seeking to coax more out of the accused. Through the right to counsel, the accused will generally be coached to say as little as possible so there is less information to be used against them later.
What is the Age of Consent in Kitchener?
The age of consent in Canada is generally 16 years old. However, there are some exceptions to this. In circumstances where a relationship of trust or authority exists between people, the age of consent is raised to 18 years. This change is meant to reflect the difference in power between people in these types of relationships. For example, the exception would apply in cases where a Kitchener business owner wishes to begin a sexual relationship with one of their employees. Because of the power they hold over their employee and the potential to coerce them into a relationship, the age of consent is raised to help ensure that the employee is mature enough to fully understand and consent to the relationship.
There is a further exception referred to as a close in age exception. Under this exception persons aged 14 or older can consent to sexual activity with anyone that is less than five years older than them. However, for the exception to apply, there cannot be an existing relationship of trust or authority between the parties. A similar exception exists for children aged 12 and 13, but they may only consent if their partner is less than two years older than them.
What is the Law Regarding Consent in Kitchener?
Section 273.1 of the Criminal Code defines consent as, “the voluntary agreement of the complainant to engage in the sexual activity in question.” That means that consent can be communicated verbally, or non-verbally by clear actions. However, consent is activity-specific and must be continuous. If the sexual activity changes in nature over an interaction, consent must be re-established. It can also be revoked at any time.
There are several scenarios where consent does not exist. Some of them include where someone has consented on behalf of a person, where the person has declined to consent by words or actions, where a person has abused a position of trust or authority to compel someone to engage in sexual activity, or where a person is incapable of providing true consent because they are intoxicated, unconscious or otherwise unable to understand the significance of their consent. Furthermore, consent must be affirmatively communicated. It is not a person’s responsibility to make their non-consent known. So, a person testing the waters by engaging in sexual activity to test a person’s reaction to it has not acquired consent. Instead, they will have committed sexual assault.
Do Limitation Periods Apply to Cases of Sexual Assault
Limitation periods are a deadline between when an offence occurs and when the Crown can legally lay a charge and accuse a person. Generally speaking, there is no limitation for sexual assault criminal offences in Canada. However, sexual assault cases are hybrid offences. This allows the Crown to elect whether this wish to prosecute a hybrid offence as a summary offence or indictable offence. Summary offences carry lesser penalties and are meant for less severe examples of offences. Indictable offences carry more strict penalties meant for more serious examples of offences. All summary offences carry a one-year limitation period.
No limitation periods exist that are specific to indictable or hybrid offences. As most Canadian criminal offences, such as sexual assault, are hybrid offences there is no effective limitation period. If a sexual assault occurred more than a year prior, the Crown would elect to prosecute an indictable offence to avoid the timing issue. However, if a person is facing a historical sexual assault charge that would be prosecuted summarily but for the time constraint, they can waive the limitation period to receive the lesser sentence for the crime.
Will an Accused’s Name be Published in the News in Connection with a Sexual Assault?
A person’s name and other information may be published in the media in connection with a sexual assault charge depending on several factors. The primary consideration on this issue is whether a court has ordered a publication ban on the matters related to the case until its conclusion. This will prohibit what kind of information can be published. Media coverage is also dependant on the choices of the outlet covering the case.
For example, a newspaper in Kitchener may decide to publish personal details if the accused is well-known in the community or if they occupy a position of particular interest to the public. This might typically include teachers where a relationship of trust has been abused or a politician. Coverage may also be more common in smaller towns and close-knit communities. If an accused person wishes to avoid this coverage, they can have a lawyer seek a ban under s. 517 of the Code at the earliest opportunity to limit the information that can be published about the accused.