Sexual assault is a serious criminal offence in Canada, which carries severe penalties upon conviction. Basic (often referred to as “level one”) sexual assault, which covers everything from unwanted sexual touching (even an unwanted kiss or caress of the posterior) to non-consensual sexual intercourse, carries a minimum penalty of one-year imprisonment if convicted as an indictable offence. The maximum penalty as an indictable offence is 10 years in prison (14 of the complainant is under the age of 16). If charged as a summary conviction offence, the maximum penalty is 18 months imprisonment (two years if the complainant is under 16), while the minimum sentence is six months in jail.
Convictions for aggravated sexual assault and sexual assault committed with a weapon carry even harsher punishments, including a minimum sentence of five years imprisonment to a maximum of life in prison. In addition to the penalties, those convicted of a sexual assault offence may face mandatory inclusion on federal and/or provincial sex offender registries.
Given such penalties, anyone facing sexual assault charges should always seek out the services of a sexual assault criminal defence lawyer. Experienced sexual assault defence lawyers, such as those at the Greater Toronto Area’s Mass Tsang, can help you navigate the legal system in pursuit of a favourable outcome. In particular, a competent sexual assault defence lawyer will seek to have the charges dropped or withdrawn.
According to the Department of Justice’s General Social Survey on Victimization, in more than half of all reported and unreported sexual assault incidents, the alleged perpetrator was a “friend, acquaintance, or neighbour of the victim.” This personal connection between the victim and alleged perpetrator suggests that some cases of sexual assault—especially at the basic level involving inappropriate touching—arise due to misunderstanding. Human interactions are often complex, especially when they involve emotions, and human touch is highly personable, making people easily misconstrue desires to touch and/or be touched.
Many sexual assault cases hinge upon witness testimony, which can make establishing guilt difficult because the nexus of the case revolves around who might be more believable. While the recent rise of the “Me Too” movement, with its “believe all women” mantra, has put increased focus on the apparent prevalence of sexual assault, the Crown still needs to prove beyond a reasonable doubt that the defendant was responsible for the sexual assault and intentionally and/or knowingly committed the assault. This may be a high threshold to meet when the primary evidence consists of “she-said-he-said” testimony without any corroborating physical evidence. Such cases often open themselves up to the consent defence, in which the defendant will try to assert that the claimant consented to the activity claimed as sexual assault.
Sexual assault victims are among the most likely in all criminal cases to request that charges be dropped. While the Crown does not have to oblige this request from the victim, if it proceeds with the case, it will have to do so with a reluctant witness, which will likely weaken its case.
Criminal defence lawyers also examine all elements of the Crown’s case to determine whether the defendant’s Charter Rights may have been violated during the police investigation, arrest, and processing. When police make procedural mistakes or fail to honour a defendant’s Charter Rights, the defence can move to have evidence suppressed or raise other challenges that can weaken the Crown’s case.
In general, criminal defence lawyers will seek to have charges dropped during Crown pre-trial negotiations after reviewing the Crown’s case and evidence provided through disclosure information it is obligated to give the defence before trial. Based on this information, the defence might call out weaknesses in the Crown’s case or point out any Charter Rights violations. If the defence’s points are compelling enough, it might be enough to get the Crown to drop charges. If Crown prosecutors feel their case is solid, they are usually less willing to consider dropping the charges or making other moves to mitigate them.
If the case seems destined to go on to trial, the negotiations will shift to discussing outstanding disclosure issues and proposed trial procedures. However, the defence can continue to negotiate for withdrawn charges or other favourable resolutions during what’s known as the judicial pre-trial, which includes participation from the judge.
The Crown is generally more amenable to dropping charges with lower-level basic sexual assault cases that involve inappropriate touching and tend to take a much harder line with more severe cases of sexual assault, such as rape, aggravated sexual assault, and sexual assault with a weapon. In lower-level cases, the Crown is often willing to drop charges or offer other favourable terms if the defendant agrees to a diversion, enters into a peace bond, or pleads guilty to other charges.
Under a diversion, the defendant agrees to take actions outside of the judicial system to account for the crime. Such measures could include community service, making a charitable donation, or attending appropriate professional counselling. In return, the court will either drop or stay the charges.
A peace bond is a court order under which the defendant agrees to keep the peace and maintain good behaviour. A peace bond for a sexual assault defendant will typically include a provision stipulating that the defendant will have no contact with the complainant.
By pleading guilty to other charges, such as simple assault rather than sexual assault, the defendant will still be penalized, but with less severe punishment and without the threat of being placed on a sex offender registry.
Whatever sexual assault charge(s) you face, your criminal defence lawyer should be dedicated to securing the best outcome of your case possible. A conviction for sexual assault can cause significant disruption to your life that can last long after sentencing should you be forced to register as a sex offender.
The sexual assault defence lawyers at Mass Tsang have successfully defended 100s of Greater Toronto Area clients from sexual assault charges. To help keep you or your loved ones out of jail and off of the sex offender registries, contact the highly experienced lawyers at Mass Tsang for your effective defence.
