Sexual assault is a very serious offence in Canada, and someone cannot be charged with this kind of offence without the presence of certain key factors. Sexual assault cases must be established correctly in Canada to be heard by a judge or a jury. If you have been accused of this kind of crime, you will need to secure a lawyer right away to make sure that you can get access to the best defence possible for your case.
Your sexual assault defence lawyer will work hard to make sure that the requirements for sexual assault have been met in your case. If they have not, the charges that have been brought against you might be dropped. The process of determining if a sexual assault actually took place can be the pivot point that these cases turn upon. When these charges are laid by the police, they must also be verified by a crown attorney through an investigation process.
Is it Sexual Assault?
For a case to be tried as sexual assault, certain legal conditions must be met. These are laid out in Section 265 of Canada’s criminal code. They are the standards by which sexual assault is considered to be legally present, and the case can then be tried as a sexual assault case. The following must be present in these cases for sexual assault to be a valid charge:
- Force was applied to the victim directly or indirectly without consent.
- Gestures and acts were used to threaten or coerce the victim to engage in an activity that they did not desire to engage in. These actions might also be taken without coercion and still be considered sexual assault.
- The victim was impeded or accosted by someone carrying or wearing a weapon.
There is no specific provision under this code for rape, but these circumstances all apply when defining sexual assault. The sexual integrity of the victim can be violated in any of these circumstances, and the judge, jury, or the Crown will have to look at all of the evidence in order to determine if a conviction is warranted.
Everything You Need to Know About Consent
Consent is one of the critical elements related to all sexual assault cases. Consent is one of the elements that the accused usually claims was given, but this must be proven. The victim of a sexual assault will argue that they did not give consent or imply that consent was given. The job of the judge and jury is to figure out which of these stories is the truth.
Consent cannot exist if force was applied to the victim, if the agreement for the act was expressed by the words or conduct of another person not engaged in the act, or if the complainant was not able to consent due to being drunk, drugged, or asleep or unconscious. There are other circumstances where consent cannot apply, such as the accused inducing the victim to engage in this act due to being in a position of power or authority or trust or if the victim is fearful of force or threats if they do not comply.
If fraud is present or if the complainant expresses a lack of willingness to undertake the act, consent cannot apply. Lastly, if the complainant revokes consent after giving it, thereby seeking to have the act halted, this also does not count as consent.
Consent is the most pivotal part of any sexual assault case that does not involve weapons or other aggravating circumstances. This will be one of the primary areas of focus of the trial due to the importance of this factor in the case.
How Does Sentencing Work in Sexual Assault Cases?
When the definition of sexual assault has been met and applied to the case, and the case has been determined to have been a sexual assault without consent by a judge or jury, the accused is then sentenced. There are various factors that can impact the severity of the sentence that is imposed on the accused, such as their prior criminal record or lack thereof and the absence or presence of aggravating circumstances in the case.
The mandatory minimum sentence must be imposed per Canadian law if the victim is younger than 16 years of age. There is no mandatory minimum in other cases, so the entirety of the circumstances of the case will be looked at to determine sentencing. This minimum is six months in jail and registry on the National Sex Offender Registry.
Maximum sentences without aggravating factors such as weapons involved are two years in jail and registry on the National Sex Offender Registry. The fact alone that you are registered on this publicly available registry can make all the difference in your ability to secure work and live in certain places. This is why it is critical to get a skilled lawyer to support your case right away if you have been accused of sexual assault in Canada.
There are provisions to be removed from the registry, but not everyone will be approved for this action to be taken. Once again, the kind of crime that you have been convicted of can make all the difference in this appeal being taken seriously or just summarily denied. The court has the final say in the removal of a person from the registry, and some people are not removed during their lifetime.
Working with a Skilled Sexual Assault Lawyer Matters
If you have been accused of sexual assault in Ontario, you must secure a skilled lawyer right away to defend your case. At Vilkhov Law, we can offer you the best support and representation for your sexual assault case. We have years of experience with these cases, and we work hard to give our Ontario clients the best results.
Our team will work hard to get you the favourable result that you have been looking for in your sexual assault case. Contact us today for a consultation so that we can start helping you grapple with the potentially serious charges that have been levelled against you.
