- Understanding Sexual Assault Charges
- The Initial Investigation
- Charges and Arrest
- Pre-Trial Proceedings
- The Trial
- Possible Outcomes
- Post-Trial Considerations
In Canada, facing charges of sexual assault can be a daunting experience. Being under criminal investigation can be overwhelming to anyone, let alone having to confront such stigmatizing allegations as sexual assault.
When someone confronting these charges seeks to find out how sexual assault cases work, they need to understand what the charges are and how sexual assault is prosecuted. While individuals in Canada have the right to represent themselves in a sexual assault trial, retaining an experienced criminal defence lawyer can help address these questions and build a strong line of defence. This article does not substitute legal advice but serves as an outline of the whole criminal process from initial report to trial and appeal, explaining how long a sexual assault investigation takes, how the sexual assault is proven and provides effective strategies at each stage of the criminal process.
Understanding Sexual Assault Charges
According to the Criminal Code, sexual assault involves any non-consensual sexual activity against another person. This can include unwanted touching, kissing, or any other similar acts of a sexual nature. Other examples of sexual assault may involve more severe cases such as forced penetration, sexual assault with a weapon or causing bodily harm.
Contrary to popular misconception, the charges for sexual abuse can be laid even in the absence of violence to the victim, for example, in case of psychological pressure, coercion or engaging in sexual activity with intoxicated individuals. Avoiding charges of sexual assault requires obtaining clear consent each time before any sexual activity and ensuring that consent is continuous throughout the encounter.
The Initial Investigation
In sexual assault cases, there are several possible scenarios of what may happen after someone makes an initial report to the police. In some cases, after making the report, an alleged victim may decide that they are not ready to proceed with the investigation, which will result in an “Information Only” report and no charges being laid.
In another scenario, the police will gather and process the information and evidence and conduct a complete investigation, including interviewing the witnesses and the suspect. It is always a good idea to seek legal advice from a Scarborough sexual assault lawyer before agreeing to attend such an interview. Importantly, choosing not to attend an interview cannot be used against you in court.
In Brampton, Mississauga and elsewhere in Ontario, the decision whether to lay the charges is made by the police. At the same time, the police officers can ask the Crown to review the results of their investigation and provide an opinion about the possibility of obtaining a conviction in court. If the alleged victim is willing to continue pressing charges for sexual assault and the police believe they have a strong case which meets court standards, the officers will proceed with the arrest.
Charges and Arrest
If the police decide that they have strong evidence and choose to proceed with sexual assault prosecution, they can arrest you during the interview or come to your location. The officers will read you your rights, handcuff you and bring you to the police station, where the charges will be officially laid.
During the arrest, you have the right to remain silent and ask for legal counsel. It is always in your best interests to avoid making any statements to the police and seek legal advice from a sexual assault defence lawyer.
The police are under obligation to provide you with a “reasonable opportunity” to contact any lawyer of your choice. The officers may call the lawyer themselves, let you call yourself, or try other ways of getting in touch with the law firm, allowing enough time for the lawyers to call back.
Pre-Trial Proceedings
After the arrest, the police may either release you to wait until the court date or hold you for a bail hearing. In serious criminal cases, such as sexual assault, you are most likely to be detained before bail.
The police are obliged to bring you in front of a judge for a bail hearing within 24 hours after arrest or as soon as possible. During the bail hearing, your lawyer will negotiate with the Crown on what is required to secure your release and will develop a bail plan. In many cases, a bail plan will involve sureties, who are individuals willing to pledge a certain amount of money to be paid if you fail to meet your release conditions.
After the bail hearing, the legal process in sexual assault cases will continue with Crown pre-trial and judicial pre-trial hearings. During the Crown pre-trial, your defence lawyer can negotiate with the prosecution and explore opportunities to minimize the charges or reach a settlement. During the judicial pre-trial conference, the judge will assess the case and act as a mediator between the prosecution and the defence with the same aim of achieving a pre-trial settlement.
The Trial
If the case proceeds to the courtroom and the Crown chooses the indictment prosecution process for sexual assault, you will have the option to choose the mode of trial. You can choose among the options of being tried by a provincial court judge, a Superior Court judge alone or a judge and a jury in a Superior Court. As the election of the mode of trial can have a significant impact on what to expect in court for sexual assault, having an experienced lawyer by your side is instrumental in achieving the most favourable possible outcome under the circumstances.
In the criminal process, it is the obligation of the prosecution to prove your guilt beyond a reasonable doubt while the judges assess the admissibility of evidence, decide on whether to grant to decline and objections and preside over the trial. In a criminal trial process without a jury, the judge decides on the innocence or guilt of the accused based on facts. Where the case is tried by a Superior Court criminal trial with a jury, the judge explains the applicable laws and standard of proof to the jurors, while the jury decides on the guilt of the accused.
During the trial, the Crown presents their case through witness testimony, physical evidence and expert reports, as applicable. Meanwhile, the defence will cross-examine the Crown’s evidence, seeking to challenge its credibility, show inconsistencies in the accusations or raise reasonable doubt about the guilt of the accused. For example, since many sexual assault incidents are “he said-she said” cases lacking circumstantial evidence, a typical line of defence includes challenging the credibility of the complainant and witnesses.
Possible Outcomes
Unless the charges are dropped before or during the court session, the criminal trial process can result either in acquittal or conviction. In case of acquittal, the accused is found not guilty of the charges and does not face any legal consequences.
A conviction in sexual assault results in severe consequences, including lengthy prison sentences, a criminal record and registration in the National Sex Offender Registry (NSOR). Meanwhile, the prison sentence for sexual assault in Canada can vary depending on the severity of the offence and the presence of aggravating factors, for example, if the victim is a minor or if there is bodily harm or a firearm involved. Accordingly, prison time can range from several years up to 14 years or even lifetime incarceration for the most extreme cases. Needless to say, an NSOR registration and a criminal record for sexual assault carry disruptive consequences for anyone’s career and social opportunities.
Post-Trial Considerations
If someone is convicted of sexual assault but believes they were erroneously found guilty because of an unfair process or legal error, they have the option to file an appeal. To do so, they need to submit a Notice of Appeal to the Court of Appeal within the jurisdiction where the trial took place within 30 days of the conviction or sentencing. Unlike the trial, the appeal focuses on legal errors during the criminal trial process rather than facts in the case.
The appeal can be filed even if someone is already incarcerated, and the correctional staff is under obligation to provide the inmates with the necessary forms. Meanwhile, someone serving their time in prison has the right to legal counsel who can assist in preparing the necessary documents. While it may take from several months to more than a year to have the appeal reviewed, it makes it possible to have the original conviction upheld, overturned or to have a new trial in the case.
Conclusion
Someone interested in how long a sexual assault case takes should account for the time from filing an initial report through police investigation, laying out the charges, the pre-trial hearings, the trial and, possibly, an appeal, which can take from several months to more than a year. Meanwhile, finding an answer to how to get sexual assault charges dropped in Ontario is case-specific and requires the assistance of experienced criminal defence lawyers.
If you face accusations of sexual assault and are looking for a criminal defence law firm in Vaughan, consider Vilkhov Law Firm. We offer criminal defence services in sexual assault cases in Vaughan, the York Region and elsewhere in the GTA, including Toronto. Don’t hesitate to give us a call or send us an email to schedule a free consultation on how we can help in your case.
