Frequently Asked Questions
What is an Sexual Assault?
What are Sexual Assault Charges & Penalties?
What is Evidence in a Sexual Assault Case?
What is Section 487 and DNA Evidence?
What is Procedure in a Sexual Assault Case?
How to Defend Sexual Assault Charges in Newmarket?
What is a SOIRA Order?
Assaulting a Peace Officer
Children’s Aid Society
Sexual Assault Law in Canada
Consequences of a Criminal Record
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening
Elements of a Crime
What Is Sexual Assault?
In Canada, in order for there to have been a sexual assault, the accused must have assaulted the victim. Assault is defined in section 265(1) of the Criminal Code to include three scenarios:
- When a person intentionally applies force to another person, either directly or indirectly, without their consent.
- An act or gesture will constitute an assault if (1) a person’s uses such an act or gesture to attempt or threaten to apply force to another person and (2) if this causes the other person to believe on reasonable grounds that the alleged attacker has the present ability to effect his purpose; or
- When a person accosts or impedes another person or begs, while openly wearing or carrying a weapon or an imitation thereof.
Secondly, the assault must have been of a sexual nature and violated the sexual integrity of the victim. According to the Supreme Court of Canada, the following considerations are relevant when making this determination:
- The part of the body touched;
- The nature of the contact;
- The situation in which it occurred;
- The words and gestures accompanying the act;
- All other circumstances surrounding the conduct, including threats which may or may not be accompanied by force.
- The accused’s intent or purpose as well as his motive, if such motive is sexual gratification, may also be factors in considering whether the conduct is sexual.
Sexual Assault Charges & Penalties
Penalties for sexual assault are determined on the basis of the specific situation, particularly, the presence of any aggravating or mitigating factors. The punishment will depend on which of the three primary categories the assault falls into, listed here in order of escalating severity:
- Section 271 – Sexual Assault (encompasses all assaults of a sexual nature violating the sexual integrity of the victim not covered by the other two provisions).
Where the crown proceeds by indictment, this has a maximum penalty of ten years imprisonment; where the victim is a child, it includes a minimum penalty of one-year’s imprisonment. Where the crown proceeds summarily, the maximum penalty is eighteen-months’ imprisonment. In that case, there is a 90-day minimum term of imprisonment where the victim is a child.
- Section 272 – Sexual Assault with a Weapon, Threats to a Third Party or Causing Bodily Harm can arise in four situations when a person who while committing a sexual assault, also does one of the following:
- (a) Carries, uses or threatens to use a weapon or an imitation of a weapon;
- (b) Threatens to cause bodily harm to a person other than the complainant;
- (c) Causes bodily harm to the complainant; or
- (d) Is a party to the offence with any other person.
In this case, the maximum prison term is ten years’ imprisonment. Minimum sentences attach for offences that involve firearms, are committed in relation to a criminal association, are subsequent offences or that involve a complainant under the age of sixteen.
- Section 273 – Aggravated Sexual Assault occurs when an accused, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.
In this case, there is a maximum imprisonment term of life. Where the offence involves firearms, is committed in relation to a criminal association, or involve a complainant under the age of sixteen, minimum sentences apply, as the case may be.
Evidence in Sexual Assault Cases
It is simply in the nature of sexual assault cases to be based on relatively scarce evidence. Sexual acts in general tend to take place in private; assault claims may be further clouded by an intoxicated complainant, accused, or both. It is very common for sexual assaults not leave direct physical evidence. This means that there is some truth to the idea that litigation over sexual assault claims does come down to what the accused and the complainant have to say about what happened, with the courts basing their decisions on the credibility and consistency of the parties’ stories. However, the absence of external evidence is by no means fatal to such charges, and that in and of itself does not preclude charges being brought or a conviction being sustained. Complainant testimony is in and of itself a form of evidence, one which can be very persuasive. Very often, these cases turn on the resolution of conflicts between the testimony of the complainant and of the accused.
Because of this, when you are thinking about consulting with a criminal lawyer on a sexual assault charge, you need to find one who not only knows how the law works, but knows how to persuade prosecutors, judges, and juries of the truth of your testimony. We have experience persuading and winning all the way up to trial, including in 2016, when we appeared on behalf of the accused in R v DN, securing a full acquittal on all counts relating to an assault of a child ten years prior.
Section 487 and DNA Evidence
One way that the prosecution can find “hard evidence” is through section 487 of the Criminal Code. Prior to trial, the crown can apply to a judge to allow the police to take DNA from an individual for the purposes of forensic DNA analysis, allowing them to better match perpetrators to crimes. While this may be an effective tool, it is also imperfect, and represents a potentially serious intrusion into the subject’s privacy.
Following a conviction, discharge, or finding of not criminally responsible, section 487 allows the Crown to obtain samples of DNA evidence from the accused in order to assist them with handling future cases and identify perpetrators going forward.
Procedure in Sexual Assault Cases
Some rules of procedure and evidence differ in sexual assault cases. Defendants are more restricted in their lawyers’ cross-examinations of complainants, and there are more stringent limits on the use of evidence about the complainant than in other areas of law. As such, we consider it particularly important to hire a lawyer who knows all of this well, and who is experienced not only in defending criminal charges, but defending sexual assault charges in particular. We believe that we fit the bill perfectly. We have defended a range of sexual assault charges of various severity, complexity, and publicity.
If your case has already or is likely to become public knowledge, we have worked in these environments before. In 2016, we helped secure the withdrawal of nine sex crime charges against a Toronto Transit driver accused of nine crimes. Previously, we helped defend against charges in one of Toronto’s largest child pornography busts.
How to Defend Sexual Assault Charges?
Sexual assault allegations can be both difficult to defend and difficult to prosecute. In many cases, there is little to no evidence other than the statements of the complainant and the accused. This can turn many sexual assault cases into he-said-she-said situations where it is unclear who is telling the truth. In York Region and across Ontario, Crown attorneys prosecute sexual offences including sexual assault offences aggressively and often advocate for periods of imprisonment upon conviction.
As with any criminal offence, the burden of proof always lies with the Crown to prove, beyond a reasonable doubt, that the accused committed the offence they have been charged with. Defendants are under no obligation to present any evidence to the Court and can simply argue that the Crown has failed to prove their case beyond a reasonable doubt.
In situations where the Crown has presented evidence that suggests that the accused is guilty, such as testimony of the complainant, it may be in a defendant’s best interest to present evidence bolstering their version of events. Where an accused maintains their innocence, the defence may argue that the complainant has fabricated the allegations. In these scenarios it is important to present evidence offering an explanation for why the complainant may be fabricating the allegations.
In other cases where there is no dispute that sexual activity occurred between the accused and the complainant, the accused may argue consent. In these situations, the Court will determine the credibility of the witnesses to determine whether or not the Crown has made their case.
If you have been charged with a sexual assault offence it is important to consult with experienced legal counsel as soon as possible. Being convicted of a sexual assault charge can lead to very serious implications in various aspects of an offender’s life. Donich Law can assist you in developing the best strategy to defend your case.
What is a SOIRA Order?
In Canada, those convicted of certain designated sexual offences will be issued a SOIRA order upon conviction. SOIRA stands for Sex Offender Information Registration Act and is a piece of federal legislation, applicable across Canada. The Criminal Code outlines a list of designated offences. If an individual is convicted of a designated offence, they will be issued a SOIRA order on a mandatory basis. Some of the designated offences include; sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, sexual interference, invitation to sexual touching, incest, child pornography, exposure and child luring. A SIORA order will remain in place for a period of ten years, twenty-five years or life as prescribed by the Court.
If you fear that any of the above applies, to you, our criminal law team would be happy to help. We defend people charged with sexual assault in Newmarket and throughout Ontario. A member of our team of Newmarket criminal lawyers would be happy to speak to you about maximizing your opportunities for a successful defence. You can reach one of them at 416-DEFENCE, or at [email protected] to discuss our services in Newmarket and beyond.
What is Sexual Assault in Newmarket?
The offence of sexual assault is outlined in section 271 of the Criminal Code. It states that an individual commits a sexual assault when they apply force to another person, either directly or indirectly, without the persons consent and the contact violates the sexual integrity of the victim.
Can I go to Jail for Sexual Assault?
Yes. Sexual assault is a serious sexual offence and is prosecuted aggressively by Crown’s in York Region and across Ontario. The sentences given to those convicted of sexual assault can vary significantly depending on the severity of the allegations. The maximum penalties for those convicted of sexual assault in York Region range from a term of imprisonment not exceeding two years less a day to up to ten years’ imprisonment.
Will I have to Register as a Sex Offender if I am Convicted?
Yes. Sexual assault is a designated sexual offence as outlined in the Criminal Code. Those convicted of a sexual assault offence will be required to register under the Sex Offender Information Registration Act on a mandatory basis for a period of ten years, twenty-five years or life. The Court will determine how long the SOIRA order will remain in place.
What is Consent?
Consent is defined as the voluntary agreement between two parties to engage in sexual activity. Under Canadian law, consent must be clear and on-going. This means that an individual must obtain consent at every escalation in the sexual activity.
What is the Age of Consent in Canada?
In Canada, the age of consent is sixteen years old. This means that an individual under the age of sixteen cannot legally consent to sexual activity with an adult. An adult who does engage in sexual activity with an individual under the age of consent will be guilty of sexual interference. This is true even where the minor is agreeable to the sexual activity and even where the minor initiated the sexual activity. The age of consent is raised to eighteen years old where the accused holds a position of power or authority over the complainant.
What if I had Sexual Contact with the Complainant in the Past?
It is generally irrelevant that an accused engaged in consensual sexual activity with the complainant prior to the alleged sexual assault. To protect sexual assault victims, Canadian law only permits the introduction of evidence regarding the complainant’s past sexual history in limited circumstances. Additionally, because an individual consented to sexual activity in the past does not mean they have consented to sexual activity in the future. Consent must be clear and on-going.
Can the Complainant Drop the Charges?
No. Once an individual has been charged with a criminal offence in Canada, only the Crown can drop the charges. In situations where the complainant is uncooperative or does not want to participate in the court process, the Crown will generally proceed with the charges anyway. This is especially true with sexual offences. In some situations however, if the complainant does not cooperate, gaining a conviction will be impossible and the Crown will drop the charges.