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Toronto Criminal Lawyer: FAQ About Sexual Assault Charges

Have you been falsely accused of sexual assault? If so, an experienced legal team is essential to help you prove your innocence and defend your reputation. Sexual assault law is complex and difficult to navigate.  Below, you will find some of the basics to help you understand what you are facing.

Legal Definition of Consent

In the Criminal Code of Canada, s. 273.1(1) defines consent as the voluntary agreement to engage in the sexual activity.

  1. 273.1(2) of the criminal code, enumerates some examples where no consent is obtained. These include agreement being expressed by the words or conduct of a person other than the complainant, meaning no person can consent for another; the complainant is incapable of consenting to the activity, for example, if they are very drunk; the complainant is induced to engage in the activity by abusing a position of trust, power or authority (think of a teacher or coach); the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or the complainant having consented to engage in sexual activity, expresses by words or conduct a lack of agreement to continue to engage in the activity. The latter example is important, and means that consent can be withdrawn at any time during the activity.

The Criminal Code also states that the examples listed above do not limit the circumstances in which no consent is obtained.

Legal Age of Consent

The age of consent for sexual activity is 16 years old. There are, however, factors that can lower or raise the age of consent.  A 14 or 15-year-old is able to consent as long as the partner is less than five years older.  This means that as soon as the partner is 5 years older, a 14 or 15-year-old cannot consent.  This exception does not exist if there is a relationship of trust, authority, dependency, or any other exploitation of the young person.

There is another exception for persons who are 12 and 13 years old.  These age groups can consent to sexual activity as long as the partner is less than two years older. Again, this means they cannot consent to a partner that is two years older or more.  The same rules apply as above, so the exception does not exist if there is a relationship of trust, authority, dependency, or any other exploitation of the young person.

These above exceptions are referred to as “close in age” exceptions.  It should be noted that a 16 or 17-year-old cannot consent to sexual activity under conditions that indicate there may be sexual exploitation.  Indicators of this would be that the partner is in a position of trust, the person is dependent on the partner for care or support, or if the relationship is of an exploitative nature.  Factors taken into account when ascertaining whether a relationship is exploitative are: the age of the young person, the age difference between the young person and their partner, how the relationship developed (over the internet for example), and whether there was control or influence.

Sexual Assault as an Offence

Sexual assault, section 271 of the Criminal Code covers a wide ambit of acts, from penetrative sexual assault, often referred to as rape, to unwanted touching.

Reflecting the range of acts that could qualify as sexual assault, sexual assault is a hybrid offence.  Depending on severity, the Crown Attorney can elect to proceed either by indictment or summarily.  If you are convicted by way of indictment, a more serious offence, you can be sentenced to a maximum of ten years of imprisonment.  If the complainant is under the age of 16, however, the imprisonment maximum increases to 14 years, and a mandatory minimum of one year is in effect.  Summary conviction has a maximum term for imprisonment of 18 months.  Should the complainant be under the age of 16 years, the maximum term of imprisonment is two years less a day and there is a mandatory minimum of 6 months.

There are also two further sexual assault offences: sexual assault with a weapon, and aggravated sexual assault.

Sexual Assault with a Weapon

Sexual assault with a weapon, threats to a third party or causing bodily harm is found under section 272(1) of the Criminal Code.  It occurs when a person carries, uses or threatens to use a weapon or imitation weapon, threatens bodily harm to a person other than the complainant, causes bodily harm to the complainant or is a party to the offence with any other person.  The maximum penalty for sexual assault with a weapon is 14 years.

Sexual assault with a weapon is an indictable offence, not hybrid.  This means that the Crown cannot elect to proceed summarily as it can with simple sexual assault.  Under specific circumstances, mandatory minimums are in effect.  If a restricted or prohibited firearm is used in the commission of the offence, or it is done for the benefit of a criminal organization the mandatory minimum punishment for a first offence is five years, and seven years for a second offence.  In any other case with a firearm, the mandatory minimum is four years.  In any other case there is no mandatory minimum.

Aggravated Sexual Assault

Aggravated sexual assault, section 273(1) of the Criminal Code, transpires when, in committing the sexual assault, the accused wounds, maims, disfigures or endangers the life of the complainant.  Like sexual assault with a weapon, aggravated sexual assault is strictly indictable, and for specific circumstances, carries some mandatory minimums.  The maximum punishment for aggravated sexual assault is life imprisonment.

The punishment, if a restricted or prohibited firearm is used, or the crime is committed for the benefit of a criminal organization, is a mandatory minimum of five years for a first offence and seven years for a second.  In any other case where a firearm is used in the commission of the offence, the mandatory minimum decreases to four years.  If the complainant is under 16 years of age, a mandatory minimum of five years is in force.

Other Sexual Offences

Sexual assault is not the only type of sexual offence. Voyeurism, human trafficking, and non-consensual distribution of intimate images, as well as incest and bestiality, are all sexual offences.

There are also sexual offences related to children.  These include sexual interference, invitation to sexual touching, sexual exploitation, child pornography, luring a child, exposure, chid prostitution, and child sex tourism.

Is there a statute of limitations?

There is no statute of limitations for sexual assault in Canada.  In fact, there is no statute of limitations for any indictable offence in Canada.  People to be charged with “historical” sexual assault offences that allegedly occurred decades ago.

The National Sex Offender Registry

If you are convicted of a designated sexual offence within the Criminal Code, you will be placed on the National Sex Offender Registry.  Offenders are required to re-register annually.  They must also re-register every time they change address, legal name, employment or engage in a volunteer activity.

All Canadian police agencies have access to this information. The public, however, is not able to access the National Sex Offender Registry.  Being a registered sex offend can affect your chances of obtaining employment.  There are also mandatory reporting obligations for registered sex offenders who travel outside of Canada.

Depending on the maximum length of the sentence for the crime, a person convicted of a designated sexual offence will be required to remain on the Registry for either ten years, twenty years, or for the remainder of your life.

Will I need to give DNA samples?

When found guilty of certain offences, the Court will make a DNA Order.  This will permit law enforcement to take bodily substance samples for a national database.  Under s. 487.051(1) the Court shall make an order for the taking of bodily substances if you are found guilty of a primary designated offence in the Criminal Code.  Most sexual offences are primary designated offences.

It must be noted that the court is required to make the order when an offender is convicted or discharged of a primary designated offence, unless the judge is: “satisfied that the person has established that the impact of such an order on either privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders.”

Facing a Sexual Assault Charge

If you are accused of sexual assault you should immediately contact a defence lawyer before speaking with police. Without legal advice, you may be coerced or tricked into saying things that could be taken as a confession for something you did not do, or may discredit your future testimony.

Your defence team’s number one priority is to prove your innocence. That is why it is important for you to cooperate, be honest, and provide as much information to your legal team as requested.

There are multiple defences to sexual assault allegations depending on the circumstances of the charges.  These can range from attempting to prove that there was consent, to proving that reasonable steps to ascertain the correct age of the complainant were taken, or that there was a mistaken belief in consent.  Determining how to proceed in a sexual assault case can be difficult, and requires a great deal of knowledge.  An experienced defence lawyer will prove invaluable.

Due to the general circumstances involving sexual assaults, the credibility of the complainant will often be a central issue.  These matters often proceed to trial.  A criminal lawyer that is an experienced cross examiner will be necessary to reveal false accusations.

Being accused of sexual assault is a life changing moment.  It will impact your career, your reputation, and perhaps even your freedom.  It is crucial to hire a defence team with the experience and expertise to in defending allegations of this nature. Contact Weisberg Law today.

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