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Accused of Sexual Assault in Toronto? Here's What You Need to Know

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Toronto and the rest of Canada take sexual assault crimes seriously. For convicted offenders, they could spend up to a decade in prison. And so, when allegations are brought up against you - even if it is false - there is no other choice but to seek legal counsel.

There is an incredible level of stigma around sexual assault claims, even without a conviction. Unfortunately for the accused, such allegations can be severely damaging to their reputation.

The penalties for sexual assault vary depending on the severity of the act, and the personal circumstances of the offender. Generally, jail time is a genuine risk for people convicted of sexual assault. Furthermore, convicts enter the sex offender database. Being on this list means you'll face strict supervision and long-term monitoring.

Frequently Asked Questions (FAQ) Regarding Toronto Sexual Assault Charges

  1. How is sexual assault legally defined?
  2. What makes an assault sexual, in nature?
  3. Should I talk to the Toronto Police Service about an alleged sexual assault?
  4. How does the Criminal Code of Canada define sexual assault?
  5. What is the age of consent in Canada?
  6. What does the prosecutor have to prove in a sexual assault case?
  7. What is consent?
  8. Can an individual have a mistaken belief in consent?
  9. Was consent given?
  10. What limits are there on attacking a complainant’s credibility?
  11. What is the potential sentence and punishment for sexual assault?
  12. What is the Canadian Sex Offenders Registry?

1. How is sexual assault legally defined?

In 1987, Justice McIntyre defined sexual assault in R. v. Chase. In essence, an assault occurs if force was applied intentionally to another person - directly or indirectly and without consent.

It becomes a "sexual assault" if the circumstance is sexual. Furthermore, it violates the victim's integrity.

2. What makes an assault sexual, in nature?

The court will examine the circumstances to determine whether the assault is sexual. This involves reviewing the parts of the body touched, any threatening words or gestures accompanying the contact, the nature of the contact, and the accused's intent. The intent includes the presence or absence of sexual gratification.

That said, sexual assault does not require sexual gratification. The intent of the accused is only one factor considered by the court. Ultimately, the overall conduct and the circumstances also come into play.

3. Should I talk to the Toronto Police Service about an alleged sexual assault?

Only you can know the truth. No matter how convinced you are that you're innocent and have nothing to hide, do not speak with the police officers without first consulting with a lawyer.

Your criminal lawyer will help you determine whether it is in your best interest to speak with the police. They will ensure you understand the implications of what you say and how it can be used against you.

Always remember that anything you say to sexual assault investigators can be used against you in a criminal case. You should also be aware that the Toronto Police Service almost always lay criminal charges after receiving a sexual assault complaint. This means that what you say to them is unlikely to ever help avoid criminal charges. For this reason, you need to have a criminal lawyer present who can ensure the integrity of your legal rights.

4. How does the Criminal Code of Canada define sexual assault?

Section 265 of the Criminal Code of Canada defines the offences of assault and sexual assault:

265

(1) A person commits an assault when

  • (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
  • (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
  • (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

Application

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

Consent

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

  • (a) the application of force to the complainant or to a person other than the complainant;
  • (b) threats or fear of the application of force to the complainant or to a person other than the complainant;
  • (c) fraud; or
  • (d) the exercise of authority.

Accused's belief as to consent

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.

5. What is the age of consent in Canada?

The Criminal Code defines the “age of consent” in Canada as 16 years of age. This means that once a person turns 16, they can legally consent to sexual contact with another person.

An individual who is 12 or 13 years old can legally consent to sexual activity with someone if that person is not more than 2 years older than the individual. Along the same lines, an individual who is 14 or 15 years old can legally consent to sexual activity with someone who is less than 5 years older than the individual.

In both of these cases, there are additional considerations that remove this right to consent:

  • The other person is in a position of trust or authority towards them.
  • The other person is someone with whom they are in a relationship of dependency.
  • The relationship is exploitative of the individual.

To illustrate, a 15-year-old cannot consent to have sex with someone who is 21 years of age. Since this consent is invalid, the 21-year-old would be guilty of sexual assault. The exception here is if the 21-year-old believed the individual was over the age of 16 and took reasonable steps to determine the age of the individual before engaging in sexual activity.

6. What does the prosecutor have to prove in a sexual assault case?

The proof of three core elements establishes a sexual assault:

  1. Intentional touching
  2. Sexual nature of the contact
  3. The absence of consent

7. What is consent?

With the assumption that a person was over the age of consent, the central issue in the majority of sexual assault cases is whether the sexual activity was consensual.

Consent is defined as the voluntary agreement between the parties to have engaged in the sexual activity in question. This consent must be present at the time the sexual activity in question takes place.

When no consent is obtained

(3) For the purposes of this section, no consent is obtained if

  • a. the agreement is expressed by the words or conduct of a person other than the complainant;
    • a. (1) the complainant is unconscious;
  • b. the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1);
  • c. the accused counsels or incites the complainant to engage in the activity by abusing a position of trust, power or authority;
  • d. the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
  • e. 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.

Subsection (3) not limiting

(4) Nothing in subsection (3) shall be construed as limiting the circumstances in which no consent is obtained.

8. Can an individual have a mistaken belief in consent?

The following section explores the topic of belief in consent and the legal requirements exploring this concept.

When belief in consent is not a defence

(5) It is not a defence to a charge under this section that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge if

  • (a) the accused's belief arose from
    • (i) the accused's self-induced intoxication,
    • (ii) the accused's recklessness or willful blindness, or
    • (iii) any circumstance referred to in subsection (3) or (4) or 265(3) in which no consent is obtained;
  • (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or
  • (c) there is no evidence that the complainant's voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

Accused's belief as to consent

(6) If an accused alleges that he or she believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.

9. Was consent given?

Generally, the Court will examine the parties' words, conduct, and the reasonable steps taken by the accused to ascertain consent in order to determine if consent was given. Words and conduct are critical factors for consideration to establish consent.

The court does not accept silence or passivity as consent, and so implied consent is not a defense to criminal sexual assault. The accused person's belief around silence, passivity, or ambiguous conduct will not provide defense to a sexual assault charge.

While the issue of consent can be a bit of a grey area, the court will look at consent from the complainant’s point of view. The court will attempt to answer whether the accused person believed that consent had been obtained.

Continued sexual contact after someone has said no is, at minimum, reckless conduct, which will result in a conviction for sexual assault.

The Criminal Code requires the accused to demonstrate that they took reasonable steps to acquire the complainant's consent. The accused need not take every step, but they must demonstrate that effort was made to take reasonable steps.

10. What limits are there on attacking a complainant's credibility?

It is no longer permitted for the accused to question the past sexual history of the complainant in a sexual assault case. Nowadays, a special application must be brought before the trial judge before this line of questioning.

If the judge determines that the complainant’s prior sexual history is relevant to an issue in the current case and has significant probative value, the court may allow such questioning. That said, this line of questions cannot be used to suggest that the complainant is more likely to have consent or is less worthy of belief due to their prior sexual conduct.

11. What is the potential sentence and punishment for sexual assault?

If an accused individual is found guilty of a sexual assault charge, the sentence will depend on whether the crown proceeds by "summary conviction" or "indictment". The crown makes their decision, with pros and cons to each.

The guilty party can face 6 months in jail and a fine of $2,000 if tried as a summary conviction offence. As an indictable offence, the punishment could be 10 years in prison. Sexual assault with a weapon carries a sentence of up to 14 years in prison. And, the worst of all is aggravated sexual assault in which the perp faces incarceration for life. Since sexual assault represents a broad range of assaultive behaviours, each case is individually considered to assess the appropriate punishment.

The circumstances, the offenders’ criminal record, and the brutality of the case are just a few of the considerations made by the judge to determine punishment. Ultimately, each case is unique.

Furthermore, an individual convicted of sexual assault charges will also be placed on the provincial and national database of sex offenders. This status will remain for at least 10 years, during which the individual will be subjected to strict supervision by the police after conviction.

12. What is the Canadian Sex Offenders Registry?

The Canadian government created the Sex Offenders Registry to track and monitor individuals convicted of sexual offences. The registry maintains the names and addresses of these convicted individuals, but the information is not available to the public. Instead, the police and specific other organizations use the Registry to track offenders and investigate sexual offences.

The Sex Offender Information Registration Act (SOIRA) requires each person on the Registry to register and provide certain information every year. The information includes their address; place of employment, volunteering, or going to school; and license plate details and vehicle description. Individuals must also notify the police if they are going away from their registered residence for more than seven days.

Generally, the judge has no discretion here and must make the order to place a convicted sex offender on the Registry. For certain offences, the judge only has to make the order if the prosecutor makes the request. Examples of offences where a judge must make the order for the convicted to register for the Registry includes sexual assault, child pornography offences, and sexual interference.

Sex Offender Registry orders persist for a period of 10 years up to life, depending on the circumstances.

Finding a Sexual Assault Lawyer in Toronto

Mass Tsang LLP is a criminal defence law firm that has years of experience defending Canadians against sexual assault allegations. They have a team of criminal lawyers with extensive experience in sexual assault and other sex crimes, who are dedicated to defending their clients - professionally and ethically.

If you, or someone you know, is facing a sexual assault charge, you should contact a lawyer immediately. They will help you determine the best strategy for defending against the allegations. Call a sexual assault lawyer in Toronto for a free consultation at 416-907-4097.



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