Frequently Asked Questions About Sexual Assault

Sexual Assault is any act that violates the victim’s sexual integrity. Sexual assault is non-consensual and does not depend on any specific part of the human body. A non-consensual sexual act is anything that lacks consent—or the voluntary agreement of all parties involved.

For most sexual assaults, you are absolutely facing a jail term and often a very significant jail term. There are a wide range of sexual crimes which escalate in severity, ranging from sexual assault to sexual assault causing bodily harm to aggravated sexual assault. There are also mandatory minimum jail terms for sexual crimes involving young persons, including sexual interference, invitation to sexual counselling, and sexual exploitation. The most serious forms of sexual assault are punishable by up to life in prison. A skilled lawyer can often either win your case or, if you decide to plead guilty, negotiate the lightest possible sentence for the facts of your case and based on your personal background.

The Canadian Criminal Code sets out lengthy mandatory minimum jail sentences if the victim is below the age of consent. The length of the mandatory minimum jail term will also depend on whether the Crown elects summarily or by indictment. For example, if a victim of sexual assault is younger than 16 years old, and the Crown Attorney elects to proceed by indictment, the mandatory minimum sentence is one year in jail. If the Crown Attorney elects to proceed summarily, the minimum sentence is six months in jail if the victim is under 16 years old.

If a victim of sexual assault is older than 16 at the time of the crime, there is no mandatory minimum sentence. However, the high sentencing ranges in Ontario and Canada almost always dictate that if a person is convicted of sexually assaulting a person over 16, they are usually facing a jail term and, in more serious cases, a very lengthy jail term. It is only in rare cases and for very minor sexual assault charges (such as a fleeting touch of a person’s buttocks), that a convicted offence may be able to avoid a jail term.

Our firm represents many individuals charged with sexual assault, and a very common defence that they raise is that the alleged victim consented to the sexual activity in question. However, the alleged victim claims that the sexual act was not consensual. The police did an investigation, and they received a statement from the victim alleging that they were sexually assaulted. If our client advised us that the victim consented, we have to consider two possibilities in formulating a strategy to win the case as follows:

1. The victim is not being truthful (i.e. during the trial of your matter, we will be challenging their “credibility” or believability as a witness)
2. The alleged victim’s perception of events is not accurate, which could be due to a number of factors (i.e. we will be challenging their “reliability” at your trial)

You will have no choice but to defend this type of case. The prosecution will not just drop the charges because you state that the person consented to the sexual encounter or you claim they are making it up, mistaken, or not reliable. However, if it is just your word against the complainant, these types of charges are always defendable. Our experienced lawyers very often win a “he said/she said” sexual assault charge by creating a reasonable doubt resulting in the charges being dismissed. An accused is always presumed to be innocent. The burden of proof is on the Crown to prove a sexual assault charge beyond a reasonable doubt. A good criminal lawyer can often effectively cross-examine an alleged victim and to show that they are not a credible or reliable witness.

First of all, under Canadian law, you are presumed to be innocent. The burden of proof is always on the Crown, which has to prove the case against you beyond a reasonable doubt. In a civil law suit, the burden of proof is merely to a balance of probability or who is more likely telling the truth. In a criminal trial, reasonable doubt is far closer to absolute or mathematical certainty than it is to a mere balance of probability.

Therefore, you can see how a good criminal lawyer can win many sexual offence cases when it is just a “he said/she said” case and there are no other direct eyewitnesses to confirm or refute the allegations Conversely, if there is other powerful evidence against you, for example, if you confessed to the crimes during your police interview and we cannot exclude your confession at trial, you are not likely going to win your case. Most of our clients who have been charged with sexual assault deny the allegations and proceed to trial. For various reasons, including our experience, skillset, and that fact it is usually a he said/she said type of case, we have won a very high percentage of our sexual assault trials over many years.

Bill C-51 was passed by Parliament in 2018 and declared law in Canadian criminal law. Section 278.92 of the Criminal Code now requires defence counsel to bring an application to attempt to introduce private records of a victim into evidence. This new law was seen as a direct response to the public outcry as a result of the Jian Ghomeshi trial where defence counsel effectively used private messages of the complainants to challenge their credibility and veracity. Many viewed this as unfair as the alleged victims were caught by surprise at the trial and ultimately the inconsistencies between their testimony at trial and their private messages was one of the reasons why Mr. Ghomeshi’s charges were dismissed.

278.92 states that if a person charged with sexual crimes, including sexual assault, is in possession of any private communications or records of the complainant (i.e. the alleged victim) which they want to use at the trial to challenge the victim’s credibility or reliability, this new law requires defence counsel to hand over this material to the Crown, complainant, and court before the trial to receive a ruling regarding whether the private record can be used by the defence at the accused’s trial. These types of records include the complainant’s private information, emails, text message, Facebook messages, social media, electronic records, photographs, etc.

This section of the Criminal Code makes any private record of the alleged victim of a sexual crime (i.e. text messages, social media, photographs, emails, etc.) presumptively inadmissible unless a judge specifically orders that the evidence can be used as evidence at trial.

As an example, assume someone accused of sexual assault has a text message from the alleged victim stating that she or he lied about being sexually assaulted and, in fact, the sexual encounter was consensual. This would be very powerful evidence which would probably in most cases lead to the accused’s charges being dismissed at trial. Prior to the introduction of s. 278.92 of the Criminal Code, the defence lawyer did not have to disclose this powerful and contradictory evidence before the trial and would probably have strategically keep it in their back pocket. They would have effectively confronted the complainant for the very first time at the trial to show that they were not a credible witness.

Under the new law, the defence lawyer is required to serve an application on the Crown and the victim before the trial, with a view to hopefully receiving an order from the judge that the prior inconsistent statement is admissible. Of course, the great disadvantage to this requirement for “reverse disclosure” is that the defence lawyer has lost his or her strategic advantage of the element of surprise and the complainant can craft an appropriate answer well before the trial to attempt to explain away the inconsistency.

There is a big difference between being able to surprise a witness with a powerful piece of evidence which contradicts their evidence and leaves them speechless and unable to respond at trial, versus providing them with the material several months before the trial so that they can come up with a clever explanation to effectively explain away an inconsistency. The new law is great if we assume all people charged with a sexual assault or a sexual crime are in fact guilty. However, some legal commentators feel it will lead to miscarriages of justice if, for example, a complainant is actually lying about being sexually assaulted and now has weeks or months to plan how to effectively explain away contradictory private records.

Properly defending a client on any sexual assault charge involves a lot of careful and detailed legal work. It is difficult to provide an exact estimate regarding the number of hours of work a good criminal lawyer will take to properly defend a sexual assault case. Every case is different, ranging from a minor sexual assault to a complex factual situation. However, our firm’s experience has shown that even the most minor sexual assault charge could take up to 150 hours of legal work. For more complex legal and factual cases, it could take several hundred hours of detailed legal work, if not more. Diligent, focused, and competent preparation are the keys to winning sexual assault cases, including properly preparing the client to testify which can take 10-15 or more hours by itself. 

A court can order a publication ban that limits what media outlets may or may not publish. For example, an accused is entitled to request a publication ban regarding the evidence presented by the Crown at a preliminary hearing. However, publication bans do not generally prevent the media from reporting that you have been charged with a particular type of criminal offence. The media is also allowed to report about the actual evidence at trial of an alleged sexual crime. The only exception at the trial is that a publication ban will prevent the media from publishing the name of the complainant or any evidence that would potentially reveal the complainant’s name.

In Canada, sexual activity is only legal when both parties consent. Canada has a broad definition of Sexual Assault, and all unwanted sexual activities fall under it. There are certain conditions in which a person is considered to be non-consenting by default, such as:

• The person is unconscious;
• The person shows any sign of non-consensual behaviour, i.e. doing or saying something to avoid a sexual activity;
• The person is only consenting because the other person is abusing a position of trust, power, or authority;
• Another person is consenting on the person’s behalf; or
• The person shows any sign of non-agreement after the sexual activity has already started.

The law also considers silence or passivity as a sign of non-agreement unless it is very clear from the person’s active participation and body language that they are in fact consenting. 

Under the Criminal Code, the age of consent for sexual activity in Canada is 16 years. The age of consent was 14 years prior to May 2008 but was raised in the Tackling Violent Crimes Act. 

Defending sexual assault cases is an area that we have spent a lot of time focusing on for over 30 years. We are passionate and committed to defending these types of cases. We believe that if a person who is charged with a sexual crime maintains they are innocent, they deserve to have the best possible legal representation with a view to creating reasonable doubt to try and win their case. People deserve to be properly defended against the government who is trying to take away their freedom. For those who are truly guilty, they do not deserve unreasonable and crushing jail terms, but a fair sentencing in keeping with the established range of sentences in Ontario. Our lawyers also embrace the fact that everyone deserves a second chance in life.

Contrary to what seems to be the popular belief of a lot of people in society, not everyone charged with a sexual crime is guilty. People come to us and say they did not do it and are innocent. Our job as defence lawyers is to defend them to the best of our ability. We always take our responsibility seriously and bring everything we can to the table in every case we do within the bounds of legal ethics and the rules of the court. This is who we are. This is what we do. This is the same promise and guarantee we make to every one of our clients.