Frequently Asked Questions
What is Sexual Assault?
What is Aggravated Sexual Assault?
Sexual Assault with a Weapon
What are the Penalties for Sexual Assault in Milton?
What are the Best Defences to a Sexual Assault in Milton?
Our Experience Defending Sexual Assault
Assaulting a Peace Officer
Consequences of a Criminal Record
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening
Elements of a Crime
What is Sexual Assault?
Section 271 of the Criminal Code outlines the offence of sexual assault. An individual is guilty of sexual assault when they assault another individual and, in the process, violate the sexual integrity of the victim. This definition is quite broad and covers a wide array of interactions. The Court will weigh the following factors to determine if an assault rises to the level of sexual assault;
- The nature of the contact between the accused and the victim
- The accused’s intention in making physical contact with the victim
- The circumstances surrounding and leading up to the assault
- Whether the accused used violence or threats of violence in the commission of the assault
- The part of the body of the victim that was touched by the accused
In addition to simple sexual assault, the Criminal Code also contains sections pertaining to more serious sexual assaults including aggravated sexual assault and sexual assault with a weapon, threats to a third party or causing bodily harm. These offences are contained in sections 273(1) and 272 of the Criminal Code respectively.
Aggravated Sexual Assault
Aggravated sexual assault, outlined in section 273(1) of the Code, occurs when an individual commits a sexual assault and in the process of the sexual assault maims, disfigures, wounds or endangers the life of the victim. Aggravated sexual assault is the most serious of all sexual assault charges and comes with the most severe penalties.
Sexual Assault with a Weapon, Threats to a Third Party or Causing Bodily Harm
Assault with a weapon, threats to a third party or causing bodily harm, outlined in section 272 of the Code, occurs when an individual commits a sexual assault while carrying, using or threatening to use a weapon or imitation weapon, where the accused threatens the victim or a third party or where the accused causes bodily harm to the victim.
What are the Penalties for Sexual Assault in Milton?
Due to the broad definition of sexual assault provided by the Criminal Code, sentences for sexual assault can range significantly from one accused to the next. The sentence imposed on an individual convicted of sexual assault will depend on several factors including their criminal history and the nature and severity of the allegations. For instance, a person accused of kissing another person without permission will be sentenced more leniently than a person accused of committing rape. Regardless of the nature of the assault, sexual assaults are prosecuted aggressively in Milton and throughout Ontario.
Sexual assault is a hybrid offence. This means that the Crown may elect to proceed summarily or by indictment depending on the severity of the allegations. Where the nature of the assault is serious, the Crown will likely proceed by indictment and in all other cases the Crown will proceed summarily. This election will determine, among other things, the maximum sentence that may be imposed on the accused if they are convicted.
In cases where the Crown proceeds summarily, an accused will face a maximum of two years less a day in prison and/or up to a $5,000 fine. Where the Crown proceeds by indictment, an accused will face a maximum of ten years in prison.
What are the Best Defences to a Sexual Assault Allegation in Milton?
The criminal sanctions that accompany a sexual assault conviction are very serious. Additionally, those who are convicted of sexual assault will be required to register as a sex offender which may negatively impact numerous aspects of the individual’s life. Formulating a strong defence to the allegations is imperative to ensure these consequences are kept to a minimum.
In some cases, those who are charged with sexual assault have been wrongfully accused. In these situations, the defence may argue that the complainant has fabricated the allegations and that no sexual contact occurred. When putting forth such a defence, it is helpful to provide the Court with a possible motive for the complainant’s fabrication. In other cases, where the Crown does not have enough evidence to convict the accused, the defence may simply argue that the Crown has not met their burden and the accused cannot be convicted as a result.
In many sexual assault trials, the main issue becomes consent. In these cases, the parties agree that sexual activity occurred however they disagree about whether the activity was consensual. In many cases, to successfully argue consent the accused must call the credibility of the complainant into question or suggest that the complainant has fabricated the allegations.
An accused may also argue mistaken belief in consent. This defence argues that the accused had an honest, but mistaken belief that the complainant was consenting to the sexual activity at the time. If the Court believes that the accused genuinely believed they had consent at the time the sexual activity occurred, the accused will not be convicted.
Our Experience in Handling Sexual Assault Claims
Our experience includes, among other matters:
- Defending a client accused of rape and sexual assault allegations ranging back almost 40 years in R v MM
- Defending an allegation of incest against a father alleged to have occurred in the 1980s in the case R v WC
Recently, we have secured the withdrawal of charges in a number of cases, including in:
- R v RK, in which we defended a Jehovah’s Witness accused of sexual assault
- R v JP, in which we secured a withdrawal of sexual interference allegations
- R v KC, in which we represented a student accused of two counts of sexual assault that later turned out to have been fabricated, resulting in the withdrawal of all charges.
- R v JS, in which we represented a Canada Post employee alleged to have sexually assaulted a co-worker following two years of litigation
While we try to ensure that are cases are resolved quickly and discretely, without the need for media attention or a trial. We sometimes even work with the police prior to charges being laid, hoping to weed out allegations before charges are even laid. Where possible, this is the perfect solution for ourselves and the police: it avoids the at-time indelible social stigma associated with sexual assault charges, and saves the police’s time. This approach is particularly helpful for doctors, physiotherapists, care-givers, and other professionals who, by the nature of their work, face elevated risks of being arrested at work.
However, while we hope to resolve these matters quietly, we are also experienced at handling high-profile sexual assault cases and cases that go to trial. For example:
- We secured a withdrawal of charges lain in R v DN against a TTC Driver accused of a total of nine sex crimes
- In R v DN, we acted on behalf of a client accused of sexual assault, sexual interference, and invitation to Sexual Touching where the accused was alleged to have sexual assaulted a child ten years before the hearing. In that case, following a three-day trial, we were able to secure an acquittal on all counts
- In R v PW, we successfully defended our client after he was alleged to have sexually assaulted his daughter, securing a withdrawal of all charges
In R v EG, we defenced the accused in one of the largest child pornography busts in Toronto history. The police seized over 500,000 images and 600 videos of the sexual abuse of children that had been shared over encrypted communications. In that case, our criminal law group confronted the police force’s investigation techniques, production orders, and decoding process head-on.
In our experience, even law-abiding citizens can find themselves faced with allegations of sexual misconduct, particularly in the context of relationship or marital disputes.
In all cases, your reputation is our number-one priority. We have developed our skills taking on cases in Toronto, where our team of criminal lawyers is headquartered. However, we also represent people charged with sexual assault and other crimes throughout the province, including in Milton. We strongly believe that your best option when faced with charges of sexual assault is to reach out to an experienced Toronto criminal lawyer.
Will I go to Jail if I am Convicted of Sexual Assault?
In some cases, yes. Whether or not an offender will be sentenced to jail after being convicted of sexual assault will depend on a number of factors including the nature and severity of the allegations and the criminal history of the offender.
What if I am a First Time Offender?
The fact that an accused is a first time offender will be a mitigating factor in their case. However, even first time offenders convicted of sexual assault will be forced to register as a sex offender and may be sentenced to a period of incarceration.
What are the Maximum Penalties for Sexual Assault?
Depending on whether the Crown elects to proceed summarily or by indictment, the maximum penalties for those convicted of sexual assault range from two years less a day imprisonment to ten years imprisonment.
Will I be a Registered Sex Offender if I am Convicted of Sexual Assault?
Yes. Sexual assault is a designated offence. This means that upon conviction, those convicted of sexual assault will be issued a SOIRA order by the Court. This will require them to register under the Sex Offender Information Registration Act as a sex offender.
What is a SOIRA Order?
A SOIRA order is an order issued by the Court requiring an individual to register as a sex offender. Those who are convicted of a designated offence or other sexual offences will be required to register under the Sex Offender Information Registration Act.
What other Consequences are Associated with a Sexual Assault Conviction?
Aside from the criminal sanctions that will result from a sexual assault conviction, those with a criminal record for sexual assault may face other adverse consequences. For example, those with a criminal record may have difficulty traveling outside of Canada or attaining employment in certain fields or with certain populations.
What is Consent?
Consent is the on-going, clear, unequivocal communication of agreement to engage in sexual activity. Consent must be present at every escalation in sexual activity. Where consent does not exist, a sexual assault has occurred.