Sexual Assault Lawyers Toronto
Toronto Criminal Lawyers Defend Sexual Assault Charges
Sexual assault is a serious criminal accusation and the stakes have never been higher for someone accused of a sexual crime. The prospect of a significant jail sentence, collection of DNA, compliance with the Sex Offender Registry, and the stigma that goes along with being charged with a sexual assault looms large in almost every case. You can’t afford to take a chance guessing whether you have chosen the right lawyer to defend you. Daniel Brown Law is recognized as one of Canada’s leading criminal defence firms for sexual assault, sexual interference, and sexual exploitation cases. Our lawyers regularly defend cases across Ontario, frequently appearing in all Toronto courthouses and elsewhere in the GTA including Newmarket, Oshawa, Brampton, and Milton.
Daniel Brown Law is recognized as one of Canadian Lawyer Magazine’s Top 10 Criminal Law Boutique Firms.
His best-selling legal textbook on defending sexual assault charges is often consulted by judges, prosecutors and other defence lawyers across Canada. Follow the link to learn more about Daniel’s book on Prosecuting and Defending Sexual Offence Cases.
Daniel Brown is also designated as a specialist in criminal law. Given his extensive knowledge and experience in this area, Daniel is often asked to comment on sexual assault cases making headlines. Daniel is aware that sexual assault allegations can lead to bad publicity and negative media attention. Because he has experience working with media outlets, he can help start to rehabilitate his clients’ reputations by making sure that media attention and publicity also follows acquittals or the withdrawal of charges.
In 2022, Daniel was voted the Toronto Star’s Readers’ Choice Award Winner in the category of Best Lawyer. Daniel Brown Law was also voted the 2022 Award Winner in the category of Best Legal Services.
Some examples of our many successful sexual assault cases can be found here:
- Toronto Star, “This GTA teacher was accused of sexually assaulting a student. Now the charges are dropped, but can life go back to normal?”
- Toronto Sun, “Photographer cleared of child sex abuse allegations in BDSM case”
- Toronto Star, “Charges dropped against Mustafa Ururyar, after sex assault conviction overturned”
- National Post, “Man accused of Mandi Gray sex assault finds it’s guilty until proven innocent”
- Toronto Star, “Swim coach Trent McNicol picks up pieces after sex assault charges dropped”
Daniel Brown knows that when everything is on the line, you need a highly skilled and well-prepared lawyer on your side. One of the keys to Daniel Brown’s success in defending sexual assault cases is his meticulous preparation.
As one judge observed after presiding over a serious sexual assault case Daniel defended:
“[Mr. Brown] …was probably one of the most prepared, most thorough, most professional cross-examiners I have ever witnessed. Every detail was at his immediate recall. This young woman in the witness stand was confronted with every conceivable inconsistency; some explainable, some she did not do a very good job of explaining, and as I watched the trial develop it occurred to me that this young witness was in for a challenge.”
To learn more about sexual assault charges, please read the following article:
Frequently asked questions about sexual assault charges:
- What is sexual exploitation?
- What is sexual interference?
- What is invitation to sexual touching?
- What is incest?
- What is voyeurism?
- What is child pornography?
- What is child luring?
- What are indecent acts?
Sexual assault is defined as an assault of a sexual nature that violates the sexual integrity of the complainant.
A sexual assault is established by proving three things: (i) intentional touching of the complainant, (ii) the sexual nature of the contact, and (iii) the absence of consent by the person being sexually touched.
A common definition of assault is when someone intentionally touches another person, directly or indirectly, without consent. There are also other ways a person can commit an assault.
To prove an assault is “sexual in nature”, the judge will consider the following factors:
- the part of the body being touched;
- the nature of the contact;
- any words or gestures including threats accompanying the conduct; and
- the accused’s intent or purpose, including the presence or absence of sexual gratification.
A sexual assault does not require the prosecutor to prove there was sexual gratification to establish the crime. For example, intentionally kicking a person in the genitals can be a sexual assault even if there was no sexual gratification for the person committing the assault. The accused person’s intent is only one of many factors to consider in deciding whether the overall conduct was sexually motivated or ‘sexual in nature’.
While some sexual assault cases will be decided on whether sexual contact happened at all, a central issue in most sexual assault cases is whether both parties consented to the sexual activity.
Defining consent for sexual activity
Consent is defined as the voluntary agreement between the parties to engage in sexual activity with each other.
How does a court determine whether there was consent to sexual activity?
Proving that the complainant did not consent to participate in sex is crucial in establishing the crime of sexual assault.
To determine if the complainant consented to engage in sexual activity, the judge will look at the parties’ words, conduct, and reasonable steps that the accused took during the encounter.
Words and conduct are important when trying to establish whether the complainant consented to the sexual contact. The complainant is not obliged to demonstrate their lack of consent by objecting, through either words or gestures. Failing to resist sexual contact is not the same as consenting to being touched. The judge will not accept the complainant’s silence or passivity as a form of consent. In other words, implied consent is not a defence to a charge of sexual assault. Even if an accused person believes that the complainant’s silence, passivity or ambiguous conduct constituted consent, that is no defence to a sexual assault charge.
The issue of consent can be a grey area, because both parties’ perceptions of the sexual encounter may be very different. The trial judge will look at consent from the complainant’s point of view at the time the touching occurred – not whether the complainant regretted the sexual contact at some later point in time. The judge will also consider the accused person’s account of the sexual activity.
There is also a grey area if the accused believed that the complainant did not consent at first, but changed their mind later. Once the complainant has expressed their unwillingness to engage in any part of the sexual contact, the accused should make certain that their sexual partner has truly changed their mind before proceeding with further sexual activity. The accused person cannot rely on a lapse of time or the complainant’s silence or equivocal conduct to show that they had a change of heart and now consent, nor can the accused engage in further sexual touching to “test the waters”. Continuing sexual contact after someone has said “No” without taking appropriate steps to ensure they have changed their mind can result in a conviction for sexual assault.
When will there be a lack of consent for sexual activity?
Consent will not exist in any of the following situations:
- where the agreement to engage in a sexual encounter is expressed by the words or conduct of a person other than the complainant;
- the complainant is incapable of consenting to the activity because of their mental state at the time – this includes intoxication, incapacity, unconsciousness, mental illness, etc.;
- the accused person induces the complainant to engage in the activity by abusing a position of trust, power or authority;
- the complainant expresses, by words or conduct, a lack of agreement to engage in the sexual activity;
- the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the conduct; OR
- The complainant is under the age of 16 and the “close in age” exception doesn’t apply.
An unconscious person can’t consent to sexual activity even if they expressed consent in advance. This is because the definition of consent requires the complainant to provide actual, active consent throughout every phase of the sexual activity, as it is happening. Any sexual activity with a person who is incapable of consciously evaluating whether they are consenting at all times is not consensual within the meaning of the Criminal Code.
The age of consent is the age that someone can legally agree to participate in sexual activity including sexual intercourse or other types of sexual contact. Canada’s age of consent laws apply equally in every Province and Territory to all forms of sexual activity, ranging from kissing and fondling to sexual intercourse.
The age of consent to sexual activity is 16 years. In some cases, the age of consent is higher (for example, when there is a relationship of trust, authority or dependency). A person must be at least 16 years old to be able to legally agree to participate in any form of sexual activity unless one of the “close in age” exceptions applies.
A 14 or 15 year old can consent to sexual activity as long as their sexual partner is less than five years older and there is no relationship of trust, authority or dependency or any other exploitation. This means that if the sexual partner is five years or older than the 14 or 15 year old, any sexual activity is a criminal offence even if the complainant agreed to it.
There is also a “close in age” exception for 12 and 13 year olds. A 12 or 13 year old can consent to sexual activity as long as their sexual partner is less than two years older and there is no relationship of trust, authority or dependency or any other exploitation of the young person. This means that if the partner is two years or older than the 12 or 13 year old, any sexual activity is a criminal offence even if the complainant agreed to it.
If a complainant is younger than 16 years old and none of the “close in age” exceptions apply, it is not a defence to a charge of sexual assault that the underaged complainant agreed to participate in the sexual activity. For example, even if a 15 year old agreed to have sex with a 21 year old, the 15 year old’s “consent” is deemed invalid, and the 21 year old would be guilty of sexual assault unless they reasonably believed the complainant was over the age of 16 and took all reasonable steps to ascertain their partner’s age before engaging in sexual activity.
What if the person accused of sexual assault honestly believed the complainant was consenting to sex?
A person can be found not guilty of sexual assault even if they engaged in sexual activity that the complainant was not consenting to, as long as the accused person held an honest but mistaken belief that the complainant was consenting.
To raise the defence of honest but mistaken belief in consent, there must be evidence that the accused person reasonably believed that the complainant communicated, by words or action, consent to engage in the sexual activity with the accused.
The question for the judge is whether the accused person believed they obtained consent from their sexual partner. What matters is whether the accused believed that the complainant effectively said “yes” through their words and actions.
Furthermore, the Criminal Code requires that the accused must show that he or she took reasonable steps to determine the complainant’s consent. Courts have maintained that not all possible reasonable steps to ascertain consent need be taken; but rather if the accused made efforts to take some reasonable steps, that may be sufficient.
Sexual assault trials have special rules about how the accused, or their lawyer, can challenge what the complainant is saying. There was a time when a person accused of sexual assault could question the complainant about their past sexual history as a way of challenging their credibility. This is no longer permitted in Canadian courts. If a person accused of sexual assault wants to ask questions about a complainant’s prior sexual activity with the accused person or with others, they must bring a special legal application before the trial judge before starting the questioning. The judge may allow an accused person to ask questions about a complainant’s prior sexual history if it is relevant to an issue in the case and has significant probative value. This questioning cannot be used to suggest either: a) that the complainant is more likely to have consented to sex because of their other sexual activity or b) that the complainant is less worthy of belief by reason alone of their prior sexual conduct with the accused person or others. This type of questioning is simply not relevant at trial and will not be permitted by the judge.
Recent changes to our laws also permit the complainant to have a lawyer represent them during this legal hearing and participate in making legal arguments to the judge.
It is always wise to consult with an experienced criminal defence lawyer before speaking with the police about a sexual assault complaint. This is true, even if you believe you have done nothing wrong to commit a crime. Receiving legal advice about legal rights and responsibilities is essential before choosing whether to make a statement.
A criminal lawyer can provide legal advice about whether it is in your best interest to speak with the police. It is also important to understand how a police statement can be used as evidence in a sexual assault trial. Once the police have received a formal complaint of sexual assault, they will almost always lay criminal charges regardless of what the person under investigation explains about the incident. Given this reality, there is very little upside to providing a police statement, however, the statement can be used against the accused at trial in several different ways. In some instances, the police statement is used to demonstrate inconsistency between the in-court testimony and their prior police statement. It can also be used as a tool to corroborate aspects of the complainant’s statement and bolster the complainant’s credibility.
In addition to a sexual assault charge, there are also many other specific sexual offences a person can be charged with in Canada, including sexual exploitation, sexual interference, invitation to sexual touching, voyeurism, internet luring, and indecent exposure.
Sexual exploitation (Criminal Code sections 153 and 153.1) is a crime that is committed if someone abuses or attempts to abuse a position of vulnerability, differential power, or trust, for sexual purposes.
A 16 or 17 year old cannot consent to sexual activity if their sexual partner is in a position of trust or authority towards them.
What are examples of people in a position of trust or authority?
Common examples of a person in a position of trust or authority can include a teacher or coach. It can also occur where the complainant is dependent on their sexual partner for care or support.
What factors will a court consider when determining a position of trust or authority?
The following factors may be considered when determining whether a relationship is exploitative of the young person:
- the young person’s age
- the age difference between the young person and their partner
- how the relationship developed (for example, quickly, secretly, or over the internet)
- whether the partner may have controlled or influenced the young person
The offence of sexual interference makes it a criminal offence to touch a person under age 16 for a sexual purpose, with either your body or an object. (Criminal Code section 151).
The offence of invitation to sexual touching makes it a criminal offence to encourage someone under 16 to touch another person’s body for a sexual purpose, with either the young person’s body or an object. (Criminal Code sections 151 and 152).
It is against the law to have sexual intercourse with someone who you know is, by a blood relationship, your parent, child, brother, sister, half-brother, half-sister, grandparent, or grandchild. (Criminal Code section 155).
In some circumstances, it is against the law to observe or record another person without them knowing about it, either in person or with a device like a video camera. This is prohibited when the person being recorded or observed has a reasonable expectation of privacy. Some (but not all) of the circumstances where hidden viewing or recording will be against the law include: (a) where the person being recorded is reasonably expected to be nude or engaged in sexual activity, or (b) where the observation or recording is made for a sexual purpose. (Criminal Code section 162).
It is against the law to make, distribute, possess, or access child pornography. Child pornography has a broad definition, but it includes (among other things) video or photographic representations of a person under age 18 engaged in explicit sexual activity, and videos or photographs that have the dominant characteristic of depicting, for a sexual purpose, the sexual organ or anal region of a person under age 18. (Criminal Code section 163.1).
It is against the law to use a computer system to communicate with a person who is under 18 for the purpose of facilitating certain sexual offences. In other words, this offence criminalizes using the Internet to communicate with underage people for the purpose of engaging in what would be illegal sex acts, e.g., using the Internet to ask a person under the legal age of consent to meet to have sex. (Criminal Code section 172.1).
It is against the law to perform an “indecent act” in a public place in the presence of another person. Sex acts, such as masturbation, can fall under the definition of an “indecent act.” It is also against the law to expose your genitals to a person under age 16 for a sexual purpose. (Criminal Code section 173).
Many of these sexual offences come with mandatory minimum jail sentences upon conviction, and mandatory orders that a person be listed on the Sex Offenders Registry.
If an accused person is found guilty on a sexual assault charge, there is a broad range for what the sentence might be. Sentences for sexual assault range anywhere from no time in jail at all, to a maximum of 18 months or a maximum of 10 years in jail, depending on whether the Crown proceeds by “summary conviction” or by “indictment”. Other types of more serious sexual offences including aggravated sexual assault or sexual assault causing bodily harm can attract even higher jail sentences.
Since a sexual assault allegation can cover a wide range of behaviour – from touching someone over their clothing to full intercourse – each case must be considered individually to assess the appropriate outcome.
Other sexual offences can carry even higher maximum sentences and can have mandatory minimum terms in jail. For example, the sentence for sexual interference can be up to 14 years in jail, with a mandatory minimum of one year in jail. The sentence for sexually assaulting someone under 16 can also be up to 14 years in jail, with a mandatory minimum of one year in jail.
When a judge is deciding on a sentence for a sexual offence, they will consider many factors, such as the offender’s criminal record and personal circumstances, the circumstances of the case, and the degree of brutality of the assault. Each case is unique.
Someone convicted of a sexual assault will also face the stigma of being placed on a provincial and national database of sex offenders for at least 10 years (and sometimes for life) and be subjected to strict supervision by the police for a significant length of time after conviction.
Finally, there are other indirect consequences of a conviction for sexual assault. For example, a person who is not a Canadian citizen could in some cases face deportation, or difficulty getting citizenship after a conviction. Having a criminal record with a sexual assault conviction can severely limit someone’s options for work, or in some cases prevent them from continuing their career at all. A criminal record for sexual assault can also make it difficult to travel outside of Canada, and some countries will deny entry to someone with a serious criminal record.
The Canadian government has established a Sex Offenders Registry to track and monitor persons who have been convicted of sexual offences. The Sex Offenders Registry is not public information: the names and addresses of persons on the registry are not made public. The Registry is used by police officers and certain other organizations to track sex offenders and investigate sexual offences.
The Sex Offender Information Registration Act (SOIRA) requires a person on the Sex Offenders Registry to register every year, and to provide the police with certain information, including their addresses, where they are employed, volunteering, or going to school, and any licence plate numbers and descriptions of the vehicles that they use. Persons on the Sex Offender Registry must also notify the police if they expect to be away from one of their registered residences for more than seven days.
If a person is convicted of certain sex offences, a judge is required to order that a person be added to the Sex Offenders Registry. For some offences, the judge only has to make the order if the prosecutor asks that the person be added to the Sex Offenders Registry, but in other cases, the judge has no discretion and must make the order. Examples of offences where a judge must make a Sex Offenders Registry order include sexual assault, sexual interference, and child pornography offences.
Sex Offender Registry orders last for a period of between 10 years to life, depending on the circumstances. Click here to learn more about Canada’s Sexual Offender Registry.
If you, or someone you know if facing a sexual assault charge, you should immediately contact a lawyer from our office to discuss the best way to successfully defend against the allegations. For a consultation, our legal team can be reached immediately at (416) 297-7200.