Frequently Asked Questions
What Happens Upon Arrest for Sexual Assault?
What are Common Sexual Assault Bail Conditions?
Is There a Limitation Period for Sexual Assault?
How to I Defend a Sexual Assault Charge?
Assaulting a Peace Officer
Sexual Assault Law in Canada
Consequences of a Criminal Record
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening
Elements of a Crime
What Happens Upon Arrest for a Sexual Assault Charge?
Upon a complainant reporting sexual assault and police deciding to pursue the charges, the accused will be brought by police officers to a police station where formal charges will be laid, and the accused’s information will be collected and entered into the police database known as CPIC.
Accused persons will then either be released on a promise to appear or an undertaking or be held in custody until their bail hearing, which will usually happen within 24 hours of the formal arrest. In cases of domestic sexual assault, the accused is very likely to be held in custody until their bail hearing.
At the bail hearing, the justice will decide whether the accused can be released from custody until the resolution of their case or not. If they allow the accused to be released from custody, the accused will then be compelled to return to court on a specific day following an appearance notice or summons to move their matter forward.
The accused may need a surety to agree to supervise them or to pledge a certain amount of money before they can be released on bail. If the accused does not return to court as mandated or have counsel appear for them, they will be charged with the criminal offence of failure to appear and may then be subject to harsher bail conditions or be returned to custody until their case is resolved. The accused will also be given other conditions they will need to follow while released.
If the justice feels the accused should not be released from custody because they are a danger to public or will not abide by the conditions of their bail, the accused will remain in custody until a plea agreement is reached or a trial proceeds. This can take months or even years in very serious cases.
What are Common Bail Conditions for Individuals Charged with Sexual Assault?
Individuals charged with sexual assault and released on bail will be subject to several bail conditions.
The accused will be ordered to cease contact with the complainant and to physically stay away from them and places they are likely to be. Where the accused and complainant live together, the accused may need to find alternative living conditions.
The accused may have to remain within the jurisdiction and surrender their passport, restricting their ability to travel outside of Ontario or Canada. They may be required to follow a curfew and may not be allowed to leave their home unsupervised at certain times. The accused may also be required to surrender any firearms and firearms licences they have, and to refrain from using drugs or consuming alcohol.
Where an accused can demonstrate a need for a bail variation, or that this would be in the best interests of all parties, they may be able to have certain unfavourable bail conditions changed. In the context of a domestic sexual assault, the most common bail variations are to remove the no-contact condition or the requirement to reside apart from the complainant.
Is There a Limitation Period for Sexual Assault?
There is no limitation period for sexual assault. This means that individuals can be charged with sexual assault years after the alleged incident occurs. Courts have recognized that victims may need time before feeling ready to report sexual assault, especially where the accused is a relative, partner, close family friend, teacher, doctor, or someone else in a relationship of trust or authority with them.
Where the alleged events occurred several years prior, they will be referred to as historical sexual assault. These cases can be easier to defend, as there may be less evidence supporting the complainant’s story and memories may have faded over time. On the same token, they can be harder to defend where there is limited evidence supporting the accused’s story and the accused’s memory has faded over time. Donich Law has experience defending cases of historical sexual assault and will help accused persons proceed with a strong defence despite these challenges.
How do I Defend a Sexual Assault Charge?
There are several strategies an accused can use to defend their sexual assault case, depending on the circumstances of their case.
The Crown has the burden of proving sexual assault allegations beyond a reasonable doubt. This is a very high burden of proof, as it requires demonstrating a very high certainty that the accused did commit the crime as alleged. A simple strategy where the Crown does not have enough evidence is to argue that the Crown is unable to prove their case beyond a reasonable doubt.
This strategy would not work where the Crown does have enough evidence to support their case. However, where the Crown does have evidence, the accused can present evidence of their own, including their own testimony, to support their version of events over that of the complainant.
The accused could deny that any sexual activity occurred. This argument is likely to succeed where the accused can present evidence that can explain why the complaint might be lying, or evidence that attacks the complainant’s credibility.
The accused could accept that sexual contact did occur and argue the complainant provided valid consent at the time, or that at the very least the accused held a mistaken belief in consent. This defence can be used where the accused can show they took reasonable steps to determine if the complainant was consenting and that they genuinely believed in existing and ongoing consent. The accused should also present evidence as to why they believed the complainant provided clear and ongoing consent.
In any situation where the accused chooses to testify in response to their sexual assault charges, they will need to ensure that they appear credible. Credibility is one of the main factors the Court considers when determining the outcome in sexual assault cases as these cases often rely heavily on contradictory oral testimonies.
What if the Complainant is Lying?
As sexual assault cases can be based entirely on the complainant’s and accused’s testimonies, the accused will have a strong defence where they can present evidence at trial that the complainant consented to the sexual activity or had a reason to make up the allegations.
What if I Have a Sexual History with the Complainant?
The accused’s sexual history with the complainant is irrelevant as this information usually cannot be admitted into evidence in sexual assault cases. Under Canadian law, this information is barred because of its tendency to support the harmful myth that because the complainant consented to sexual activity in the past, they must have consented to the sexual activity that is the subject of the alleged assault.
How do I Know When Someone Gives Consent?
Consent to sexual activity requires a clearly communicated agreement to engage in a specific sexual act. If the person is silent, unconscious, under the age of 16, or has another person speaking for them, then they have not given consent to sexual activity. A person can also revoke their consent at any time, even during sexual activity.
What is the Age of Consent?
In Canada, individuals younger than 16 cannot validly consent to sexual activity with anyone who is too much younger than them or who is older than 18. Also, individuals younger than 18 cannot consent to engage in sex work or sexual activity with adults who hold positions of trust or authority over them.
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