Sexual Assault Lawyer Toronto
Toronto Criminal Lawyer Defends Sexual Assault Charges
Sexual assault is a serious crime in Canada. The mere stigma of being accused of a sexual assault charge can irreparably damage a person’s reputation. You can’t afford to take a chance guessing at whether you have chosen the right lawyer to defend you.
Daniel Brown Law is recognized by Canadian Lawyer Magazine as one of Canada’s top 10 criminal defence firms.
His legal textbook is sold across Canada and is often consulted by judges, prosecutors and other defence lawyers working on similar cases. Follow the link to learn more about Daniel’s best selling text on Prosecuting and Defending Sexual Offence Cases.
Daniel is also designated as a specialist in criminal law and has successfully defended countless sexual assault cases across Ontario on behalf of his clients. Given his extensive knowledge and experience in this area of law, Daniel is often called upon by the media to comment on sexual assault related cases making headlines.
See for example:
- 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, “Ontario to curb prosecution of HIV non-disclosure cases”
- National Post, “Swedish man gets 10 years in prison for raping Canadian girls — over the internet”
- Toronto Star, “Could Jian Ghomeshi trial have turned out differently?”
- Toronto Sun, “Lawyers break down Ghomeshi trial”
- Toronto Star, “Local defence lawyers see strong week for Jian Ghomeshi”
- Toronto Star, “A big question for Ghomeshi’s defence: Should he testify?”
- Toronto Star, “Retrial ordered in ‘sexsomnia’ case”
- City News, “Criminal lawyer on Ghomeshi arrest & charges”
- Toronto Sun, “Sex Assault Conviction would be roadblock for Jian Ghomeshi in U.S.”
- Toronto Star, “Jian Ghomeshi: Evidence could be weakened by time since alleged attacks”
- City News, “Did Jian Ghomeshi receive special treatment at court?”
- Global News, “Is a new phone app a legitimate way to ensure consent?”
- Toronto Star,“Swim coach Trent McNicol picks up pieces after sex assault charges dropped”
- Canadian Lawyer Magazine, “Appeal court right to overturn sex assault verdict, says lawyer”
- National Post, “Despite making arrest, Toronto police reveal few details about string of sexual assaults near Christie Pits”
Daniel Brown knows that when everything is on the line, you need a skilled and well prepared lawyer on your side.
One of the many keys to Daniel Brown’s success in sexual assault cases is meticulous preparation. As one judge presiding over a serious sexual assault case observed:
“[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 the definition of sexual assault?
- When is an assault “sexual in nature”?
- Should I speak with police about an alleged sexual assault?
- What is the Criminal Code of Canada definition of sexual assault
- What is the age of consent in Canada?
- What must the prosecutor prove in a sexual assault case?
- Was there consent?
- When will there be a lack of consent for sexual activity?
- Can someone have a mistaken belief in consent for sexual activity?
- Was consent given?
- Are there limits on attacking a complainant’s credibility in a sexual assault case?
- Besides sexual assault, what other sexual offences are in the Criminal Code of Canada?
- What is the sentencing or punishment for sexual assault?
- What is the Sex Offenders Registry?
Sexual assault is defined as an assault which is committed in the circumstances of a sexual nature such that the sexual integrity of the victim is violated.
To determine if an assault is sexual in nature, the court looks at 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.
Sexual assault does not, however, require sexuality or sexual gratification.
The accused’s intent is only one factor to consider in deciding whether the overall conduct has a sexual context. Its importance depends on the circumstances.
You should always consult with a lawyer before you speak with the police about a complaint or allegation of a sexual offence – even if you think you are innocent and even if you have nothing to hide.
A criminal lawyer can provide you with legal advice about whether it is in your best interest to speak with the police and how the evidence can be used later on in the event you are charged with a crime. It is very important that you receive legal advice about your rights and responsibilities before you say anything to the police which could hurt your ability to defend yourself.
Remember, anything you say to the police can be used against you in your criminal case. You should also be aware that once the police have received a complaint of sexual assault, they will almost always lay criminal charges regardless of what the person under investigation tells them about the incident.
Section 265 of the Criminal Code of Canada outlines the offences of assault and sexual assault as follows:
A person commits an “assault” when:
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. obtained where the complainant submits or does not resist by reason of the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
(3) Where the accused alleges that he believed that the complainant consented to the conduct that is the subject matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
As set out in the Criminal Code, the “age of consent” in Canada is 16 years of age. Once a person turns 16, they are old enough to be able to legally consent to sexual contact with another person.
If a person is 12 or 13 years old, they are legally able to consent to sexual activity with someone who is less than two years older than them, so long as the other person:
- Is not in a position of trust or authority towards them,
- Is not someone with whom they are in a relationship of dependency, and,
- The relationship between the 12 or 13 year-old and the other person is not exploitative of the 12 or 13 year-old.
Similarly, if a person is 14 or 15 years old, they are legally able to consent to sexual contact with someone who is less than five years older than them, so long as the other person:
- Is not in a position of trust or authority towards them,
- Is not someone with whom they are in a relationship of dependency, and,
- The relationship between the 14 or 15 year-old and the other person is not exploitative of the 14 or 15 year-old.
- If a 14 or 15 year-old is married, they are also able to consent to sexual activity with their husband or wife.
If a person is under age 16 and none of these exceptions apply to that person, it is not a defence to a charge of sexual assault that the under-age person agreed to sexual touching or contact with the accused. For example, even if a 15 year-old agreed to have sex with someone aged 21, in law, the 15 year-old’s “consent” is considered invalid, and the 21 year-old would still be guilty of sexual assault unless that person believed the complainant was over the age of 16 and took reasonable steps to ascertain the person’s age before engaging in sexual activity with them.
A sexual assault is established by the proof of three elements: (i) intentional touching, (ii) the sexual nature of the contact, and (iii) the absence of consent.
Assuming a person was over the age of consent, a central issue in most sexual assault cases is whether or not the sexual activity in question was consensual between the parties. Consent is the voluntary agreement of the parties to have engaged in the sexual activity.
Consent will not exist in any of the following situations:
(a) where the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to the activity by virtue of the complainant’s mental state at the time (i.e. intoxication, mental illness, etc.);
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity;
(e) 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
(f) The complainant is under the age of 16 (Note: this is subject to the “close-in-age exception outlined above)
An accused may be found not guilty of a sexual assault charge even where there existed no consent between the parties if the accused held an honest but mistaken belief that the sexual activity was consensual.
An honest but mistaken belief in consent can be raised if the accused establishes that they held a reasonable belief that the complainant affirmatively communicated consent through the complainant’s words or actions.
However, the accused honest but mistaken belief in consent cannot arise from any of the following scenarios:
(i) self-induced intoxication;
(ii) recklessness or willful blindness; or
(iii) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
In order to determine if consent was given, the Court will look at the parties’ words, conduct, and reasonable steps taken by the accused to ascertain consent. Words and conduct are important when trying to establish if the complainant consented to the sexual contact. The Court will not accept a complainant’s silence or passivity as a form of consent; in other words, implied consent is not a defence to criminal sexual assault. An accused person’s belief that the complainant’s silence, passivity or ambiguous conduct constituted consent provides no defence to a sexual assault charge.
Undoubtedly, the issue of consent can be a grey area, as parties’ perceptions of events may vary a great deal. The Court will look at consent from the complainant’s point of view.
The question for the court to answer is whether the accused person believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said “yes” through her words and/or actions.
Once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind before proceeding with further sexual contact. The accused cannot rely on the mere lapse of time or the complainant’s silence or equivocal conduct to indicate that there has been a change of heart and that consent now exists, nor can he engage in further sexual touching to “test the waters”.
Continuing sexual contact after someone has said “No” is, at a minimum, reckless conduct which is not excusable and will result in a conviction for sexual assault.
Furthermore, the Criminal Code requires that the accused must show that under the circumstances, he or she took reasonable steps in order to ascertain the complainant’s consent. Courts have maintained that not all reasonable steps to ascertain consent need be taken; but rather that efforts were made to take some reasonable steps may be sufficient.
Because the definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity, it is not possible for an unconscious person to consent to sexual activity even if she expresses her consent in advance. Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is not consensual within the meaning of the Criminal Code.
There was a time when a person accused of sexual assault was permitted to question the complainant in a sexual assault case about their past sexual history as a way of attacking the complainant’s credibility. This is no longer permitted by the courts. If a person accused of sexual assault wishes to ask questions about an complainant’s prior sexual activity with the accused person or others, a special application must be brought before the trial judge prior to commencing the questioning. The Court 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. However, this questioning can not be used to suggest either that the complainant is more likely to have consented and/or, is less worthy of belief by reason alone of her prior sexual conduct. This type of questioning is simply not relevant at trial and will not be permitted by the judge.
In addition to sexual assault, the Criminal Code creates a number of other sexual offences, such as:
- Sexual Interference & Invitation to Sexual Touching: 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. The offence of invitation to sexual touching makes it a criminal offence to encourage someone under age 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)
- Sexual Exploitation of a Minor or a Person with a Disability: If a person is under age 18, it is against the law for another person to have (or encourage) certain kinds of sexual contact with that person when (a) the other person is in a position of trust or authority, (b) the person is in a relationship of dependency, or (c) the relationship is exploitative. Likewise, if a person is in a position of trust or authority towards someone with a physical or mental disability, or if the person with a disability is in a relationship of dependency with the other person, there are circumstances where it is against the law to encourage the person with a disability to have sexual contact without their consent. (Criminal Code sections 153 and 153.1) To learn more about sexual exploitation, click here.
- Incest and Bestiality: 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. It is also against the law to have sex with an animal. (Criminal Code sections 155 and 160)
- Voyeurism: In certain circumstances where a person has a reasonable expectation of privacy, it is against the law to surreptitiously observe or record that person, either in person, or with an electronic device such as a video camera. Some (but not all) of the circumstances where this hidden or clandestine 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.
- Child Pornography: 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)
- Child Luring: It is against the law to use a computer system to communicate with a person who is under 18 years old for the purpose of facilitating certain sexual offences. This offence criminalizes using the Internet to communicate with under-age persons 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)
- 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 upon conviction, and mandatory orders that a person be listed on the Sex Offenders Registry.
If an accused person is found guilty and must face sentencing on a sexual assault charge, the sentence could range anywhere from no time in jail at all to a maximum of 18 months or 10 years depending on whether or not the crown proceeds on the sexual assault by “summary conviction” or whether they proceed by “indictment”. How a crown chooses to proceed is entirely within their discretion. There are pros and cons to both procedures.
Since a sexual assault allegation can cover a wide range of assaultive behaviour from groping someone to full intercourse, each case must be considered individually in order to assess the appropriate punishment.
In sentencing, a judge will consider a host of factors when it comes to determining an appropriate punishment, such as the offender criminal record, the personal circumstances of the offender, the circumstances of the case, as well as the brutality or lack thereof regarding 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 be subjected to strict supervision by the police for a significant length of time after conviction.
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, and 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 to discuss the best way to successfully defend against the allegations. For a consultation, Daniel Brown can be reached at (416) 297-7200.