Accused of Sexual Assault in Toronto? 7 Critical Defence Steps

Introduction: The Moment Everything Changes

Being accused of sexual assault is a seismic event. The moment you become aware of a police investigation or face an arrest, your world is turned upside down. The shock, fear, and profound uncertainty can be paralyzing. In this moment, instinct can lead to devastating mistakes. The initial hours and days following an accusation are often the most critical, and the actions you take—or fail to take—can fundamentally shape the entire trajectory of your defence.

This article is not a substitute for direct legal advice from a qualified lawyer about your specific situation. Instead, consider it an urgent briefing from a defence counsel’s perspective, a strategic guide to navigating the immediate aftermath of a sexual assault allegation including seven critical steps you need to take immediately to help defend against this serious allegation. Understanding these steps is your first line of defence in a system that is complex, demanding, and unforgiving.

Your freedom, your reputation, and your future are on the line. The choices you make right now matter more than you can possibly imagine. Let’s ensure they are the right ones. At Daniel Brown Law, our award-winning Toronto criminal defence lawyers are recognized nationally for trial and appellate excellence. Daniel Brown is certified by the Law Society of Ontario as a Specialist in Criminal Law. Clients trust us to act immediately, protect their liberty at bail, and build strategic, evidence-driven defences in high-stakes sexual offence prosecutions.

1) Exercise Your Right to Silence—Completely and Without Exception

The first, most important, and non-negotiable step is to exercise your right to remain silent. When confronted by police, you are obligated to provide your name and date of birth. Beyond that, you must say absolutely nothing about the allegations. This is not just a right; it is the single most powerful tool you have to protect yourself at the outset of a criminal case.

Debunking the “Innocence” Myth

Many people, especially those who believe they are innocent, feel an overwhelming urge to explain their side of the story. The thinking is logical but legally perilous: “If I just tell them the truth, this will all be cleared up.” This is a dangerous myth. Even if you are entirely innocent, speaking to the police is one of the most significant mistakes you can make.

Even if you believe you are innocent and feel that you have nothing to hide, your current situation is likely nerve-wracking and stressful, and you could accidentally misstate the truth in a way that hurts you later at trial. Under the immense stress of an interrogation, your memory can falter. You might get a date wrong, misremember a sequence of events, or omit a detail that seems unimportant at the time. Later, when the Crown prosecutor compares your statement to other evidence, these innocent mistakes can be portrayed as deliberate lies, severely damaging your credibility in front of a judge or jury.

The Dangers of Speaking Are Real and Severe

Any communication with the police is fraught with risk. It’s crucial to understand that “a statement” is not just a formal, recorded interview. It includes any communication between you and the police while you are in custody, even casual small talk. Officers are trained to build rapport and engage in informal conversation to elicit information. Every word you say can and will be documented and potentially used against you.

Here’s how even seemingly helpful statements can backfire:

Exculpatory Statements Can’t Help, But They Can Hurt: If you give a statement denying the allegation (an exculpatory statement), your defence lawyer cannot normally introduce it at trial as evidence of your innocence. However, the Crown prosecutor can use it against you. If you later testify and your account differs in any way from what you told the police, the Crown can use the initial statement to impeach your credibility. If your statement contains details that can be proven false, even on a minor point, the Crown will argue it demonstrates an effort to mislead the police which is consistent with your guilt.

You Give the Crown a Strategic Roadmap: A defendant in a criminal case isn’t required to share their version of events with the police or prosecutor ahead of a trial. When you provide your version of events or reveal a potential defence, you are handing the Crown attorney  a strategic advantage. You are showing them your playbook before the game has even begun. This allows them to prepare their case specifically to dismantle your defence, find witnesses to contradict your account, and tailor their trial strategy accordingly.

The best way to exercise your right to silence is to be completely silent. While some lawyers advise clients to repeatedly say, “On the advice of counsel, I wish to remain silent,” complete silence is generally more effective at ending the questioning. It is awkward and unnatural, but it is your most powerful shield.

Action: Politely state that you wish to speak to a lawyer and will not answer questions. Then call us: (416) 297-7200.

2) Preserve, Don’t Purge—Your Digital Life Is Critical Evidence

In the emotional turmoil following a sexual assault accusation, a common and understandable instinct is to erase all digital traces of the complainant. Anger, hurt, or a desire to simply move on can lead to the deletion of text messages, call logs, emails, and social media conversations. This is a critical error.

Your digital life is not just a record of your past; it is a vital source of potential evidence for your defence. This is why one of the first things a specialized criminal lawyer will do is obtain copies of all these communications from you, ensuring they are preserved in a forensically sound manner for trial.

What to Preserve

• Voicemails
• Text messages (SMS, iMessage, WhatsApp, etc.)
• Emails
• Call records from your phone provider
• Social media conversations (Facebook Messenger, Instagram DMs, Snapchat, etc.) between you and the complainant
• Any relevant social media posts or communications between the complainant and other people that you may have access to or knowledge of.

Why Preservation is Paramount

This digital evidence can be the key to raising a reasonable doubt. These records provide context that is often missing from the complainant’s initial statement to police. They can demonstrate the nature and tone of your relationship, show a pattern of consensual communication, or contain statements from the complainant that directly contradict the allegations. Erasing this information is akin to destroying evidence that could prove your innocence.

While it is sometimes possible for a forensic expert to recover deleted data from an electronic device, it is not a guarantee. Some or all of the evidence may be permanently lost once deleted. The safest, most effective strategy is to preserve everything from the outset. Early intervention by a lawyer is crucial here, as they will know exactly what is needed and how to ensure it is properly saved in a format that will be admissible in court.

Furthermore, valuable information can often be found in the public domain. A simple Internet search of a witness’s name can uncover public profiles on platforms like Facebook, X, and Instagram. Since these platforms are often linked, an open profile on one can lead to discoverable content on another, all of which can be used as evidence at trial.

Do not delete texts, emails, DMs, photos, or call logs. These materials often provide context about the relationship, timelines, tone, and consent discussions.

Action: Stop posting about the case. Back up devices. Forward materials to your lawyer through secure channels.

3) Hire a Specialist Criminal Defence Lawyer—Immediately

The term “certified specialist in criminal law” is not just a marketing buzzword. This designation is earned through years of focused experience, rigorous peer review, and a demonstrated expertise in criminal law.

Defending a sexual assault allegation requires navigating a vast and technical body of law covering dozens of distinct and complex topics, including:

• The precise mental element (mens rea) for various sexual offences
• Complex rules governing search and seizure of evidence
• Applications for publication bans
• Special protections for witnesses
• Highly technical evidentiary rules for private records and prior sexual history

Many criminal law practitioners lack the depth of knowledge required to effectively use these intricate rules to your advantage. A criminal law specialist lives and breathes this area of law. They understand the nuances of the legislation, the latest Supreme Court rulings, and the strategies that are most effective in court. In the face of a sexual assault charge, a specialist lawyer is not a luxury; it is a necessity.

Action: Speak to our experienced sexual assault defence team now. Explore our Sexual Assault Defence page and our Appeals work for complex cases.

4) Understand That “Consent” Has a Strict Legal Definition

In the vast majority of sexual assault cases, the central issue is consent. However, the legal definition of consent in Canada is often vastly different from a layperson’s everyday understanding of the term. The entire case can hinge on whether the Crown can prove, beyond a reasonable doubt, the absence of consent to the sexual activity as the law defines it.

Under Canadian law, consent is the voluntary agreement of the complainant to engage in the specific sexual activity in question. This definition is governed by several strict legal principles that you must understand.

Key Legal Principles of Consent

Consent is Subjective: The court must determine what was in the complainant’s mind at the time the sexual activity occurred. It is their subjective, internal state of mind that matters. This means the court is not concerned with what a reasonable person might have inferred from the situation, or what the accused believed was happening. The only thing that legally matters is what was actually going on in the complainant’s mind at that specific moment. What an accused person believed or assumed is a separate issue (covered below).

There is No Implied Consent: This is one of the most critical principles. In Canadian law, consent cannot be implied from a person’s silence, passivity, or ambiguous conduct. The absence of a “no” does not mean “yes.” Consent must be active and affirmative.

Incapacity Invalidates Consent: A person cannot legally consent if they are unconscious or so intoxicated that they lack the capacity to understand and voluntarily agree to the activity. Furthermore, if a person gives consent while sober but later becomes incapable due to intoxication or falling unconscious, that prior consent ends. Any sexual activity that occurs after the point of incapacity is a sexual assault.

The “Reasonable Steps” Defence Has a High Bar: If an accused person claims they had an honest but mistaken belief that the complainant was consenting, it is not enough for that belief to be genuine. The law requires that the accused must have taken reasonable steps to ascertain that the complainant was consenting. This places a clear onus on the person initiating sexual activity to ensure, through words or unambiguous affirmative conduct, that the other person is a willing and continuous participant. Relying on assumptions or misinterpreting ambiguous signals is not a defence.

5) Build a Defence with Evidence—Not Just Your Word

Many people mistakenly believe that sexual assault cases are simple “he-said/she-said” scenarios where a judge or jury just decides who they believe more. While credibility is always a central issue, a sophisticated and robust defence goes far beyond a simple denial. It involves proactively using advanced legal tools to gather and present evidence that challenges the Crown’s case and creates a reasonable doubt.

This is another area where a specialist lawyer’s expertise is indispensable. They know how to employ complex legal procedures to uncover evidence that can be vital to your defence.

Advanced Legal Tools for Your Defence

Accessing Third-Party and Private Records: A complainant’s private records—such as diaries, counselling notes, or social media messages with others—can sometimes contain information that is crucial for the defence. However, accessing these records is extremely difficult due to strong privacy protections. A defence lawyer must bring a formal court application (known as a Mills application or an application under s. 278.92 of the Criminal Code) to gain access. This is a complex, multi-stage process with strict legal tests that a judge must apply. Success requires a deep understanding of the law and persuasive legal argument.

Challenging the Complainant’s Narrative with Other Evidence: The law places severe restrictions on introducing evidence of a complainant’s other sexual activity. These rules, found in section 276 of the Criminal Code, exist to prevent the defence from relying on the “twin myths”: the outdated and prohibited ideas that a person’s sexual history makes them more likely to have consented or less worthy of belief. However, in very specific and legally defined circumstances, a lawyer can apply to introduce this type of evidence if it is directly relevant to a legitimate issue at trial (for example, to provide an alternative explanation for the presence of physical evidence like DNA, rather than to attack the complainant’s character). This is one of the most technically complex applications in criminal law.

Using Expert Evidence: A skilled defence lawyer may retain an expert witness to provide an alternative context for the evidence. For example, a toxicologist could testify about the effects of alcohol on memory and behaviour, challenging assumptions about a complainant’s level of impairment. A psychologist might be called to provide evidence on issues like false memory syndrome, especially in cases where a complainant’s memories have emerged or changed over time, potentially influenced by therapy or suggestion. This expert evidence can be critical in educating the court and challenging the Crown’s theory of the case.

6) Prepare for a Complex, Lengthy Process

Defending a sexual assault charge is a marathon, not a sprint. The criminal justice process is notoriously slow, demanding, and emotionally draining. It is crucial to set realistic expectations from the very beginning to prepare yourself for the long road ahead.

The journey from accusation to verdict involves numerous distinct stages, each with its own procedures and strategic considerations. A typical case can involve:

The initial arrest and bail hearing.

A lengthy disclosure process, where your lawyer receives and meticulously analyzes the evidence from the Crown.

A preliminary inquiry, a hearing to test if there is enough evidence to proceed to trial, is now only available in a small number of cases. Following major amendments to the Criminal Code in 2019, eligibility for this crucial procedural step has become a legal minefield. Determining whether a case even qualifies for a preliminary inquiry requires a specialist’s knowledge of retrospective law application, a subject so complex that the Ontario and Quebec Courts of Appeal have issued conflicting rulings on the matter. This creates a situation where your rights could differ depending on judicial interpretation—a perfect example of the intricate legal maze you face, and a powerful demonstration of why a specialist’s guidance is non-negotiable.

Numerous pre-trial motions, where your lawyer may argue to exclude evidence or bring one of the complex applications mentioned above.

Finally, the trial itself, which can last for days or even weeks.

The sheer scope of this legal field is staggering. A successful sexual assault defence requires navigating a vast and highly technical body of law. Patience, resilience, and expert guidance are essential to withstand the pressures of this long and complex process.

7) Know That “Credibility” ≠ “Reliability”

When a judge or jury assesses a witness, they are not just making a gut decision about whether they “seem believable.” The law has a structured and nuanced approach to evaluating testimony, and a skilled defence lawyer’s job is to ensure the court applies these principles correctly, free from common misconceptions.

Credibility vs. Reliability

First, it is vital to distinguish between credibility and reliability.

Credibility refers to a witness’s honesty and their desire to tell the truth. Reliability refers to the accuracy of their evidence.

A witness can be perfectly credible—meaning they are honestly trying to tell the truth as they remember it—but still be unreliable because their memory of the event is mistaken or inaccurate. A strong defence often focuses on challenging the reliability of the evidence, pointing out inconsistencies or objective facts that suggest the complainant’s memory is flawed, without necessarily accusing them of lying.

Challenging Myths and Stereotypes

Canadian courts are legally required to avoid relying on outdated myths and stereotypes about how a “real” sexual assault victim should behave. An experienced defence lawyer knows these myths are legally impermissible and will object to any reasoning—from the Crown or in a judge’s analysis—that relies on them. Common myths include:

• The myth that a true victim will always fight back.
• The myth that a delay in reporting an assault means the allegation is likely false.
• The myth that a victim will always avoid their abuser after an assault.

The law, informed by decades of research on trauma, recognizes that there is no single ‘correct’ way for a person to react to a sexual assault. Behaviours that may seem counter-intuitive to a layperson—such as not fighting back, delaying a report, or even maintaining contact with an abuser—are now understood by the courts as common and varied human responses to trauma. The role of a defence lawyer is to educate the court and build a case that is assessed on facts and evidence, not on outdated and prejudicial assumptions.

Finally, it’s important to manage expectations about certain types of evidence. For instance, while an accused person can introduce evidence of their good character (e.g., a reputation for honesty), courts have held this evidence has diminished value in sexual assault cases that occur in private. This is because a person’s public reputation may have no bearing on their private conduct. This is just one example of the nuanced legal knowledge a specialist lawyer brings to your defence.

Why Hire Daniel Brown Law LLP for a Sexual Assault Defence

• Deep specialization in sexual offence trials and appeals.
• Award‑winning reputation in criminal defence and appellate advocacy.
• Proven results at every stage of a case, from bail to trial.
• Appellate strength: our appeals practice is widely recognized.

Appeals practice: 

Sexual Assault Defence (overview)

Conclusion: An Accusation Is Not a Conviction

Facing a sexual assault allegation is one of the most daunting experiences a person can endure. The legal, personal, and financial stakes are immense. However, it is essential to remember that in the Canadian legal system, an accusation is not a conviction. The presumption of innocence is the bedrock of our justice system, and the Crown bears the heavy burden of proving guilt beyond a reasonable doubt. The key to ensuring a fair trial and mounting a robust defence lies in making informed, strategic decisions from the very first moment.

The seven steps outlined above—exercising your right to silence, preserving evidence, hiring a specialist, and understanding the core legal concepts—are your immediate priorities. The complexity of the law, the high stakes involved, and the severe emotional toll make expert legal guidance truly indispensable. Navigating this process alone, or with inexperienced counsel, is a risk that can have irreversible consequences.

With your freedom and reputation on the line, can you afford to navigate this intricate legal maze on your own?

Do not speak to police before you speak to us. Contact our team for immediate, confidential advice. The decisions you make right now—silence, preservation, retaining a specialist, and evidence‑driven strategy—can protect your future. If you are facing a sexual assault allegation, speak with our team now.

Phone: (416) 297-7200
Office: Daniel Brown Law, 400–103 Church St., Toronto, ON M5C 2G3

❓ Sexual Assault Charges in Ontario — Frequently Asked Questions