Sexual Assault Defence Lawyer
Sexual assault is a very serious criminal offence in Canada. Going through the process alone can be confusing and demoralizing. It is always wise to have a sexual assault lawyer in your corner.
What is sexual assault?
Both assault and sexual assault charges involve an absence of consent. Under section 271 of the Criminal Code of Canada, a sexual assault is a specific type of assault that involves any form of unwanted sexual touching or sexual activity.
Sexual assault does not just include non-consensual intercourse. Even activities, such as kissing, fondling or, any sexual touching without the complainant’s consent can constitute sexual assault. While the assault must be sexual in nature, it does not need to be done for a sexual purpose and the presence or absence of the accused’s sexual gratification is not determinative. What matters in these cases is the complainant’s bodily and sexual integrity. For example, touching someone’s genitals, even if it was not done for a sexual purpose, can be considered sexual assault. Sexual assault becomes aggravated sexual assault when a person, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant. The court will look at various factors to determine whether the touching was ultimately sexual in nature.
What is consent?
Consent for the purposes of sexual assault is defined under section 273.1 of the Criminal Code. Consent means that the complainant voluntarily agreed to engage in the sexual activity in question. Consent needs to be clearly communicated through the words and/or actions of the complainant.
Consent needs to be present at the time the sexual activity took place. Consent also needs to be ongoing and can be withdrawn by the complainant at any time. Additionally, if someone consented in the past, that is not sufficient consent for present or future sexual touching.
Under section 273. 1(2) of the Criminal Code, no consent is obtained if:
- the agreement for sexual activity was made by anyone other than the complainant;
- the complainant is unconscious;
- complainant is unable to consent;
- the accused abuses their position of trust, power or authority, and induces the complainant into engaging in the sexual activity;
- the complainant expressed by their words or conduct a lack of agreement to engage in the sexual activity; and
- the complainant having consented, later expresses a lack of agreement to continue to engage in the sexual activity.
What is the age of consent in Canada?
Age of consent is the legal age that a person can legally consent to sexual activity. In Canada, the current age of consent for sexual activity is 16 years. Anyone under the age of 18, however, cannot consent to sexual activity with anyone that is in a position of trust or authority over them.
Arrest and bail:
When you are arrested, officers must tell you of your right to counsel. This right allows you to speak to and retain a lawyer following arrest. It is always a good idea to exercise this right and obtain legal advice before speaking to police.
You may be released directly by police, or you could be held for a bail hearing, depending on the circumstances of the assault as well as your own personal circumstances (e.g. if you have a criminal record). The police have a few mechanisms for release, which all require you to attend court as specified with your sexual assault lawyer in Toronto. If you are released by police, there are likely to be conditions attached to it through what is known as an undertaking. These conditions can be, for example, prohibitions against contacting the victim or not attending a certain location.
Although sexualt assault is a hybrid offence (i.e. the Crown has the ability to choose whether to proceed summarily or by indictment), all hybrid offences are considered indictable until the Crown elects. As such, you will be asked to attend a police detachment for fingerprinting ahead of your first court appearance.
If you are held for bail, you will be brought in front of a judicial official within 24 hours of your arrest. Not only will a sexual assault lawyer tell you what to do and what not to do when interacting with police, they can also start working on your release if you are being held in custody.
If you are brought to court for bail, a sexual assault lawyer in Toronto can speak to the Crown about what is required to secure your release and can propose a bail plan. The plan often involves one or more people called “sureties.” A surety is someone you know who agrees to take responsibility for your release into the community. They pledge to pay a certain amount of money if you do not follow your conditions of release. Being a surety is a huge responsibility, and a sexual assault defence lawyer can explain their role and adequately prepare them for court.
Everyone has a constitutional right to reasonable bail with respect to the amount of money sureties pledge and the conditions imposed on you. Reasonableness also includes the fact that you should not be denied bail without “just cause.”
The Crown may consent to your release based on the plan. If they have concerns about the plan, the circumstances of assault, your chance of reoffending, your ability to follow conditions (especially if you have breached bail before), et cetera, they may contest your bail. A contested bail results in a bail hearing (also known as a “show cause” hearing). In line with the principles of reasonable bail, the Crown must “show cause” as to why it is in society’s best interest for you to be detained—although there are certain circumstances that require the accused to demonstrate why their detention is not justified.
There are three grounds of detention upon which you can be denied bail. The Crown will state on which grounds they are seeking detention, which consider:
- Whether you are a flight risk (primary ground);
- Whether you pose a threat to the public (secondary ground); and
- Whether your detention is required to maintain confidence in the administration of justice (for example, due to the seriousness of the allegations and/or the strength of the Crown’s case) (tertiary ground).
The court will look at factors, such as your ties to the community, your personal circumstances, the presence of a criminal record, the offence itself, and the strength of a proposed bail plan and adequacy of sureties, when considering these grounds.
As part of considering your release, the court will determine whether conditions should be imposed and what they should be to mitigate concerns, such as ensuring that you attend court and do not commit any further offences. These bail conditions can be stringent and restrictive and may include, but are not limited to:
- Supervision through sureties;
- Curfews or house arrest, including ankle monitoring;
- Refraining from use of drugs and alcohol;
- Mandatory counselling;
- No contact with certain individuals, such as the victim; and/or
- Restrictions on where you can travel.
When making this consideration, the Crown and the court are bound by the “ladder principle.” This principle means that when it comes to imposing conditions, the least restrictive conditions must be imposed unless the Crown can show that the less restrictive conditions are not appropriate in your case. The Supreme Court of Canada’s 2017 decision in R. v. Antic reinforced this principle. A number of courts, however, seem to have forgotten this obligation. A lawyer can help the court recognize that your detention is not necessary and can remind the court why less strict bail conditions are appropriate.
If you are denied bail, you will remain in custody until your trial or resolution, although it is possible to ask for a bail review at the Superior Court. Obtaining bail can be an uphill battle. Hiring a sexual assault lawyer Toronto maximizes your chances of being released.
It is important to recognize that breaching the terms of your bail conditions can result in further charges against you and the revocation of your bail.
Once you are released by police or a bail hearing is conducted, a lawyer can start preparing a successful defence for your case.
A lawyer for sexual assault cases will ask the Crown for the disclosure of all relevant evidence against you. The Crown is obligated to disclose evidence about your case to your lawyer, regardless of whether or not that evidence will be used by the Crown in court. This disclosure is a fundamental feature of our criminal justice system. It helps to ensure that you have a fair trial and that you have the information needed to provide a full answer and defence. Having a sexual assault defence lawyer by your side can be an advantage, as there are certain items of disclosure that the Crown will only release to counsel. If you do not have a lawyer, you may have to make arrangements with the Crown to review this evidence, which can be extremely time-consuming.
In some cases, disclosure can include hundreds (and sometimes thousands) of pages of documents, as well as hours of police interviews and surveillance footage. A lawyer will review these documents and can use them to effectively advocate for you.
A lawyer will then take steps to move the case along. Once disclosure is reviewed, a Crown pre-trial (CPT) is typically scheduled. The CPT allows the defence and the Crown to discuss issues in the case, as well as the Crown’s position. The CPT can be a springboard for further discussions and negotiations with the Crown. Depending on the case and how it proceeds, a judicial pre-trial (JPT) may also take place. The JPT allows a judge to weigh in and provide guidance in a more informal setting.
If you have retained a lawyer, you will not be present at the CPT or JPT. A lawyer’s expertise and experience can be invaluable at this stage. If you do not retain a lawyer, you most likely will have more difficulty speaking to the Crown, and your JPT will take place in open court instead of the judge’s chambers. You will be responsible for advocating for yourself, which can be an unnecessary stress added to an already challenging experience.
There can be a number of court appearances before a case is set down for trial or a plea is entered. A lawyer can explain the purpose of these appearances and even appear on your behalf, so you have one less thing to worry about.
If the Crown chooses to proceed by indictment, and the case goes to trial, there will come a time when you will be asked to make an election regarding your mode of trial. You will have the option of being tried by a provincial court judge, a judge alone in the Superior Court, or a judge and jury in the Superior Court. Since sexual assault against a person under 16 carries with it a possible sentence of 14 years in prison, you will also be entitled to a preliminary inquiry for that offence, which is a sort of mini-trial that determines whether there is sufficient evidence to even hold a trial on the charges. If the judge finds that there is not sufficient evidence, then you will be discharged. Making your election and having a preliminary inquiry are strategic decisions. You will no doubt benefit from the support of a lawyer advising and guiding you through this lengthy and complicated process.
Consequences if found guilty:
Sexual assault is treated very seriously, and that seriousness is reflected in the possible sentences for a sexual assault conviction.
If the Crown chooses to proceed summarily:
- If you are convicted of sexually assaulting someone over the age of 16, you can face a maximum sentence of 18 months.
- If you are convicted of sexually assaulting someone under the age of 16 , you can face a maximum sentence of 2 years less a day.
If the Crown chooses to proceed by indictment
- If you are convicted of sexually assaulting someone over the age of 16, you can face a maximum sentence of 10 years.
- If you are convicted of sexually assaulting someone under the age of 16 , you can face a maximum sentence of 14 years and a minimum of 1 year.
There are also certain orders that accompany a sexual assault conviction, such as a DNA order, a section 161 order (if the complainant is under 16) and a SOIRA order (which involves the Sex Offender Registry). These orders can have a far-reaching effect on your life long after you are sentenced. Depending on the seriousness of the assault, alternative, more lenient sentences and resolution mechanisms are available. A lawyer is in the best position to explain the possible consequences to you and to work tirelessly to obtain the best outcome in the circumstances.
It’s vital to hire a lawyer
Being charged with sexual assault is a stressful and very stigmatizing experience. It is important to seek professional advice from a lawyer about your rights from the beginning.
A lawyer can also do much more. They can:
- Work to secure your release with the most favourable conditions;
- Help you navigate the criminal justice system;
- Ensure that the Crown meets its disclosure obligations;
- Identify systematic or administrative errors in the criminal process, including Charter rights violations;
- Speak to the Crown on your behalf, negotiate, and advise you of your options;
- Assess all the evidence against you and build a strong defence, so the charges are withdrawn or you are acquitted;
- Gather further evidence to support your version of the events and to question the complainant’s reliability and credibility;
- Obtain a more lenient sentence in the event a guilty plea or conviction is entered.
All criminal cases are complex and fact specific. We have provided general information about how sexual assault cases are handled. These types of cases often come down to credibility. Hiring a lawyer provides your best chance at mounting a successful defence. For more information about how we can help, please contact our team.