Sexual Assault Lawyers Toronto

A sexual assault charge in Ontario is prosecuted under s. 271 of the Criminal Code and is treated as a serious personal injury offence, which affects bail, trial election, and sentencing range. Most cases are resolved at the Ontario Court of Justice or the Superior Court of Justice depending on the Crown's election, and almost every case turns on credibility rather than physical evidence. A strong defence focuses on the reliability of the complainant's account, inconsistencies in prior statements, honest but mistaken belief in communicated consent, and Charter issues in how the statement was obtained. A conviction carries mandatory registration on the Sex Offender Information Registry (SOIRA), potential DNA collection, and significant jail exposure.

Daniel Brown Law ranks among Canada's top criminal defence firms and frequently defends sexual assault, sexual interference, and sexual exploitation cases in Toronto, Newmarket, Oshawa, Brampton, and Milton. Daniel Brown is a Certified Specialist in Criminal Law (Law Society of Ontario) and co-author of the leading Canadian text Prosecuting and Defending Sexual Offence Cases. Learn more about the Sex Offender Registry.

Why Choose Daniel Brown Law?

Daniel Brown is a Certified Specialist in Criminal Law (Law Society of Ontario) and co-author of Prosecuting and Defending Sexual Offence Cases — a legal textbook cited by judges and lawyers across Canada, including at the Supreme Court of Canada. Post City Magazine has named him one of Toronto's Top Criminal Lawyers. The firm is ranked among Canada's Top Criminal Law Boutiques by Canadian Lawyer Magazine, and among the nation's best criminal defence and appellate firms by Best Lawyers.

Sexual assault cases often attract media attention before any evidence is tested in court. Daniel is a frequent media commentator on these cases and understands how coverage shapes the people living through them. When the Crown withdraws a charge or a trial ends in acquittal, he works to make sure that outcome gets the same public attention the original allegation did.

Success Stories in Sexual Assault Defence

Daniel Brown Law has successfully defended clients in numerous high-profile cases, including:

• 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"

Judges have recognized Daniel's cross-examination skills in open court. One judge described his performance as:

"one of the most prepared, most thorough, most professional cross-examiners I have ever witnessed. Every detail was at [Mr. Brown's] 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."

Defending Against Sexual Assault Charges

The key legal issues in a sexual assault case:

Proving a sexual assault case in court

Defining assault, sexual assault and consent

Age of consent in Canada for sexual activity

Defences in sexual assault cases

Limits to challenging a complainant's credibility in a sexual assault case

Speaking with the police about a sexual assault allegation

Other types of sexual offences:

1. Sexual exploitation?
2. Sexual interference?
3. Invitation to sexual touching?
4. Voyeurism?
5. Child luring?
6. Indecent acts?

Sexual assault sentences

Sex offenders registry

Proving a sexual assault case in court

Sexual assault is defined as an assault of a sexual nature that violates the sexual integrity of the complainant.

To secure a conviction for sexual assault, the prosecutor must prove three elements:

• The accused intentionally touched the complainant.
• The touching was sexual in nature.
• The complainant did not consent.

What counts as sexual assault under Canadian law?

a) Defining assault

An assault occurs when someone intentionally touches another person without consent.

b) Defining sexual assault

After the prosecutor has proven that an assault took place, they must then prove that the assault was "sexual in nature" or for a "sexual purpose". To prove an assault is "sexual in nature", courts consider the body part touched, the nature of the contact, and the intent of the person engaged in the touching.

Sexual assault does not require proof that the accused received sexual gratification. An intentional kick to another person's genitals may be a sexual assault even if the person committing the assault did not receive sexual gratification from their actions. Intent is only one of several factors a judge considers at trial.

c) Consenting to sexual activity

Consent is often a grey area because both parties' perceptions of the encounter may be different. The trial judge first looks 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. The judge also considers the accused person's account before making a determination.

A judge must resolve whether someone consented to sexual activity before concluding a sexual assault occurred. Consent must be voluntary, informed, and ongoing. Courts assess words, actions, and steps taken to confirm consent was given. Wrongly believing that silence, passivity or ambiguous behaviour by the complainant demonstrated consent is not a legal defence to a sexual assault charge.

When will there be a lack of consent for sexual activity?

Consent to sexual touching will not exist in any of the following situations:

1. where consent is given by someone else;
2. where a person lacks the mental capacity to consent — including someone who is severely intoxicated, unconscious, or suffering from a serious mental illness;
3. where consent is obtained by abusing a position of trust, power, or authority;
4. where a lack of consent to engage in sexual activity is expressed by words or actions;
5. where someone expresses a lack of agreement to continue the sexual activity; or
6. where a person is not old enough to consent to sexual activity.

What is the age of consent in Canada?

The age of consent is the age at which someone can legally agree to participate in sexual activity. Canada's age of consent laws apply equally in every Province and Territory to all forms of sexual activity, from kissing and fondling to sexual intercourse.

• The legal age of consent is 16 years, with exceptions for close-in-age relationships.
• A 14- or 15-year-old can consent if their partner is less than five years older and there is no exploitation or authority or trust relationship.
• A 12- or 13-year-old can consent only if their partner is less than two years older and there is no exploitation or authority or trust relationship.

What defences work in a sexual assault trial?

Consent

Demonstrating that consent to sexual activity was given and not withdrawn is a complete defence to sexual assault accusations. Testimony from witnesses, text messages before and after the encounter, and other evidence including photographs and videos can demonstrate that consent was given.

Honest but mistaken belief in consent

An accused can argue they honestly, but mistakenly, believed the complainant consented. To use this defence, they must provide evidence that the complainant's words or actions signalled consent.

Identity

DNA evidence, forensic evidence and eyewitness evidence can establish the identity of a sexual assault suspect. In some cases, the prosecutor cannot prove the identity of the suspect, which results in an acquittal.

No sexual touching occurred

A person can deny that the touch was sexual in nature or that the sexual touch happened at all.

Accident

Any sexual touching that happened may have been accidental. Only intentional touches are potentially criminal.

Can you challenge a complainant's credibility in a sexual assault trial?

Courts impose strict rules on questioning a complainant about past sexual history. Defence lawyers must seek court approval before introducing this evidence. The judge may allow questions about a complainant's past sexual history with the defendant or someone else if it is relevant to an issue in the case and has significant probative value.

Should you speak to police about a sexual assault allegation?

Consulting an experienced criminal defence lawyer before speaking to police is critical. Even if you believe you are innocent, statements can be used against you. Police often lay charges based on the complainant's account, making legal guidance essential.

What other sexual offences exist in the Criminal Code?

Beyond sexual assault, the Criminal Code includes charges such as:

• Sexual exploitation: Engaging in sexual activity with a person aged 16-17 in a relationship of trust or authority.
• Sexual interference: Touching a person under 16 for a sexual purpose.
• Invitation to sexual touching: Encouraging someone under 16 to touch another person sexually.
• Voyeurism: Secretly recording or observing someone in a private setting for a sexual purpose.
• Child luring: Using the internet to communicate with a minor to facilitate sexual offences.
• Indecent acts: Engaging in sexual acts in public.

a) Sexual exploitation

Sexual exploitation (Criminal Code sections 153 and 153.1) 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.

People in a position of trust or authority

Common examples of a person in a position of trust or authority include a teacher or coach. It can also arise where the complainant is dependent on their sexual partner for care or support.

Factors determining if someone is in a position of trust or authority

The following factors may be considered when determining whether a relationship is exploitative of the young person:

1. the young person's age;
2. the age difference between the young person and their partner;
3. how the relationship developed (for example, quickly, secretly, or over the internet);
4. whether the partner may have controlled or influenced the young person.

To learn more about sexual exploitation, click here.

b) Sexual interference

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).

c) Invitation to sexual touching

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).

d) Voyeurism

In some circumstances, it is against the law to observe or record another person without their knowledge, 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).

To learn more about voyeurism, click here.

e) Child luring

It is against the law to use a computer system to communicate with a person 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 — for example, using the internet to ask a person under the legal age of consent to meet for sex (Criminal Code section 172.1).

f) Indecent acts

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 on conviction, and mandatory orders that a person be listed on the Sex Offenders Registry.

What are the penalties for a sexual assault conviction?

Sexual assault convictions carry severe penalties, including:

• Up to 18 months or 10 years in jail, depending on case severity.
• Longer sentences for aggravated sexual assault.
• Sex Offender Registration for 10 years to life.
• Deportation risk for non-citizens.
• Severe travel and employment restrictions.

Sentences range from no time in jail at all, up 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. More serious sexual offences — including aggravated sexual assault or sexual assault causing bodily harm — can attract higher jail sentences up to life in prison.

Because a sexual assault allegation can cover a wide range of behaviour — from touching someone over their clothing to full intercourse — each case is considered individually.

Judges decide on a sexual offence sentence after considering factors such as the person's criminal record and personal circumstances, the circumstances of the case, and the degree of brutality. Each case is decided on its own facts.

Someone convicted of a sexual assault also faces registration in provincial and national databases for sex offenders between 10 years and life. They are strictly supervised by the police for a lengthy period of time.

Non-citizens can face deportation, and a conviction will severely limit work and travel options.

Will I be on the sex offender registry if convicted?

The Sex Offender Information Registration Act (SOIRA) requires convicted offenders to register their addresses, workplaces, and travel plans with police. This registry helps law enforcement track individuals convicted of sexual offences. Judges impose registry orders for offences such as sexual assault, sexual interference, and child pornography.

Sex Offender Registry orders last between 10 years and life, depending on the circumstances. Click here to learn more about Canada's Sex Offender Registry.

Facing a Sexual Assault Charge? Contact Daniel Brown Law

Call (416) 297-7200 for a consultation. A sexual assault charge moves quickly — bail, early disclosure review, and defence strategy all start the day of the arrest.