Frequently Asked Questions
What to do if you have been Charged with Sexual Assault in Windsor?
What Evidence does the Crown need to Prove Sexual Assault in Windsor?
What if the Complainant never said “No”?
-Age of Consent
-Position of Trust or Authority
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 to do if you have been Charged with Sexual Assault in Windsor
If you have been charged with sexual assault in Windsor it is very important to understand your rights to ensure they are protected throughout the criminal justice process. Due to the complex nature of sexual assault cases, it is important to hire a lawyer with experience defending sexual offences.
The most important rule to remember if you have been accused of, or charged with sexual assault, is to remain silent. Do not give a statement to police or anyone else. The police are skilled at manipulating people into giving evidence. An accused may be tricked into answering questions or giving evidence that may seem unimportant or unrelated but may later be used against them in court. In other situations, the accused may admit to something they do not realize is illegal. For these reasons, the best course of action is not to speak at all.
What Evidence does the Crown need to Prove Sexual Assault in Windsor?
It is a common misconception that if there is no “evidence” in a case, the court cannot convict the accused. The truth is, there is almost always evidence in sexual assault cases, otherwise the police would not have laid the charges to begin with.
Many people believe that to be convicted the Crown must present “real” evidence to the court such as a DNA sample, video of the alleged incident or a third-party witness. In reality, these types of evidence rarely exist in sexual assault cases. In the vast majority of cases, the only evidence against the accused is the statement and testimony of the complainant.
Once a complainant makes a sexual assault allegation to police, police will arrest the accused. They will then send audio and video of the complainant’s statement to the Crown for prosecution. To prove their case, the Crown must then call the complainant at trial and have them tell their story on the record to the court. If, based on the complainant’s testimony alone, the court is convinced beyond a reasonable doubt that the complainant is telling the truth, they will convict the accused.
This is especially true in recent years. There has been a recent shift in sexual assault case law and sentencing principles. Courts are increasingly believing the testimony of complainant’s, making it easier for the Crown to gain a conviction.
In situations where the case proceeds to trial, the lawyer representing the defendant will have an opportunity to cross-examine the complainant after they present their story to the court. The purpose of cross-examination is to point out any inconsistencies in the complainant’s version of events and give them the opportunity to reply to those inconsistencies.
If defence counsel can point out enough material inconsistencies in the testimony of the complainant, the court cannot convict the accused. However, if the complainant’s version of events does not change and the defendant’s lawyer is unable to shake them on cross-examination, there is a high likelihood that the accused will be convicted.
What if the Complainant Never said “No”?
Another common misconception in sexual assault cases is that if the complainant did not say “no”, no sexual assault occurred. In Canada, sexual activity is only legal when both parties are consenting. In some situations, including when one person is under the age of consent, or when one person is in a position or authority, consent cannot exist.
Consent is outlined in section 273.1 of the Criminal Code. It states that consent is the voluntary agreement of the complainant to engage in the sexual activity in question. The Code goes on to state that consent must be present at the time the sexual activity in question takes place.
Case law indicates that there must also be consent at every escalation in sexual activity. This means that just because an individual agreed to one sexual act does not mean they have agreed to other sexual acts.
Further, an individual must obtain consent prior to engaging in sexual activity. One is not permitted under Canadian law to “test the waters” by touching another person sexually to gage their interest. In such a situation, once the individual had said “no”, a sexual assault has already occurred.
The Age of Consent
In Canada, the age of consent to sexual activity is sixteen years old. Individuals under the age of sixteen cannot legally consent to sexual activity, unless the other individual is close in age to them (i.e., also a minor). This means that even if a person under the age of sixteen verbally agrees to engage in sexual activity with an adult, their consent is not valid under the law and a sexual offence has occurred. An adult who engages in sexual activity with a person under the age of sixteen could be charged with sexual assault as well as sexual interference.
Position of Trust or Authority
No consent can exist where an individual abuses their position of trust or authority to engage in sexual activity with another person. For example, a police officer engaging in sexual activity with an individual whom they have arrested would likely be considered a sexual assault. In this scenario, the individual being arrested may feel pressured into the sexual activity because of the position of power the officer holds.
What if the Crown has no Evidence?
The only evidence the Crown needs to convict an accused of sexual assault is the statement and testimony of the complainant. If the court believes, beyond a reasonable doubt, that the complainant is telling the truth, they may convict the accused without any independent evidence.
Will I be Placed on the Sex Offender Registry if Convicted?
Yes. In Canada, offenders convicted of sexual assault will be issued a mandatory order by the court requiring them to register as a sex offender for a minimum of ten years. The accused must keep up to date with their registration for the duration of the order.
Can I Avoid Jail if Convicted of Sexual Assault?
In some cases, yes. Whether or not an accused will be sentenced to a period of incarceration for a sexual assault conviction in Windsor will depend on the nature of the sexual assault, the past history of the accused and other related aggravating and mitigating factors.
Can Text Messages I Sent be Used Against me?
Yes. If an individual accused of sexual assault made admissions relating to the allegations in a text message, those messages could be introduced into evidence at trial. For example, if an accused apologized to the complainant, that would be considered an admission, making the messages admissible.
What if the Complainant has Changed their Story?
If the complainant in a sexual assault case changes a material aspect of their story it is likely that the court will find them to be not credible as a witness. If the court finds the complainant not to be credible, they may not convict the accused.
What if the Complainant never said “no”?
In Canada, consent must be clear and on-going. One cannot assume the other person is consenting because they do not specifically say so. An accused who is reckless or does not take reasonable steps to ascertain whether their partner is consenting to sexual activity will be guilty of sexual assault.
What if the Complainant is Fabricating the Story?
Where the complainant has fabricated the allegations, a trial is almost always necessary. Counsel representing the defendant will cross-examine the complainant and any other Crown witnesses to impeach their credibility and demonstrate that the allegations are false.