In Canada, sexual assault has a broad definition and any non-consensual unwanted sexual touching is considered a sexual assault. More often, in sexual assault cases, the critical legal issue is “consent”. Did the complainant consent to the nature and quality of the sexual act?
The crime of “sexual assault” involves any non-consensual touching of a “sexual” organ, and includes conduct from the touching of the breasts over the clothing to more serious criminal acts like rape.
Any sexual activity, including the following actions, in a context in which they are unwanted, would be a sexual assault according to the Criminal Code:
Pyzer Criminal Lawyers has successfully defended numerous cases of sexual assault allegations across Ontario over the past 35 years. The following two cases best demonstrate our aggressive and effective defence strategy and the services we provide at trial.
It was alleged that Mr. Fast walked by a female pedestrian in downtown Toronto one night, and grabbed her in the groin area. A second independent witness also observed the act. Police were called. Approximately 20 minutes later, Mr. Fast was found approximately one kilometre away. He matched the description provided by the complainant as to the perpetrator’s age, dress and ethnicity.
The complainant identified Mr. Fast at his trial as the perpetrator. At his trial, the defence successfully raised a reasonable doubt as to identity, arguing that the police had failed to follow standard photo-lineup procedures and pointed to inconsistencies between the evidence of the complainant and the other independent eyewitness.
Furthermore, the defence established that the specific location where the victim was sexually assaulted was poorly illuminated, and the complainant was distracted immediately prior to being assaulted.
The complainant testified that she did not consent to the sexual acts of kissing and touching over the pants in the groin area. The defendant testified that the complainant was an active participant in the kissing and had effectively invited the touching by her behaviour. He testified that when the complainant resisted, he discontinued his attempts at more sexual activity, and resumed kissing her.
The defence successfully brought an application for the complainant’s counselling records. At trial, His Honour Judge Gage acquitted Mr. B, unimpressed with the complainant’s version of events. His Honour commented adversely on the complainant’s failure to preserve text message evidence, and her omission of critical facts in her initial report to the police.
At Pyzer Criminal Lawyers, our criminal defence lawyers approach each case with experience and expertise to construct a defence tailored to effectively defend the specific sexual assaults.
We understand that, while intoxication is not a viable defence against sexual assault allegations, the lines of sexual consent are sometimes blurred, especially when the participants have consumed alcohol or drugs. Sexual acts, whether consensual or otherwise, often occur in private, and without independent witnesses.
If the defence in the case can demonstrate that the accused had a reasonable but mistaken belief that the activity in question was consented to by the accuser, the accused is not criminally culpable for the offence of sexual assault.
Another potential defence is the identity of the accused. When the issue is related to identity, a lack of forensic evidence in the form of DNA (from seminal fluids) may raise a reasonable doubt as to the identity of the perpetrator.
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Pyzer Criminal Lawyers has successfully employed these and countless other defences against allegations of assault, resulting in the dismissal or acquittal of the charges.
Sexual assault is a serious accusation. It is important to be represented by an experienced criminal defence lawyer if you intend to fight it.
Know your rights. If you are facing criminal offence charges contact Pyzer Criminal Lawyers for your free consultation today!
We offer a free case evaluation so that we can meet each other and determine how we can get the best outcome with your case. We will help explain your charges to you, explain the possible outcomes that may occur, and what your next steps should be. Call us today to see how we can help you.
According to s.271 of the Criminal Code, everyone who commits a sexual assault is guilty of:
The Criminal Code defines consent in section 273.1(1), as the voluntary agreement to engage in sexual activity. The law takes into account what the individual was thinking and feeling at the time of the activity. Any form of sexual touching is only lawful if an individual, either through words or conduct, affirmatively communicates their consent. Under the Criminal Code, a person’s silence or passivity does not equal their consent.
If you can satisfy the court that the complainant actually consented to the act, you will not be found guilty of sexual assault. However, the defence of consent becomes messy when alcohol becomes involved. There are several situations in which the court deems that the complainant's consent “doesn’t count”, one of them including the complainant is incapable of consenting to the activity due to intoxication. In order to determine if consent was given, the Court will look at the parties’ words, conduct, and if reasonable steps were taken.
It is the individual who is initiating or pursuing the sexual activity who is responsible to ensure that the sexual activity is consensual. If an individual state or demonstrate that they do not consent to the sex or sexual actions, the other individual cannot rely on the passage of time or the fact that the individual did not again state or demonstrate that they did not consent, to assume that consent now exists.
An individual cannot legally consent to activity in advance of the act when they will be unconscious. An individual cannot legally consent to an activity that will cause them to suffer bodily harm, such as an activity that will cause serious bruises, stitches or broken bones.
The legal age of sexual consent in Canada is sixteen. The law includes a “close-in-age exception,” meaning fourteen and fifteen-year-olds can have sex with someone who is less than five years older. Should an adult engage in sex with a minor sixteen years old or younger, they can be charged with criminal offences.
Since 2004, the Canadian Courts have required those found guilty of certain sex-related criminal offences be registered in a sexual offender database.
The Sexual Offender Information Registration Act (SOIRA) establishes the National Sexual Offender Information Registry, which is a national database that contains the identity, location and other information of those found guilty of certain sex-related criminal offences in Canada.
SOIRA requires those found guilty of certain sex-related criminal offences in Canada to provide personal information and to report to police on a yearly bases so that they can be closely monitored.
No, the general public cannot access the information on the Sex Offender Registry. The database is private but is accessible to all police agencies within Canada for the purpose of investigating crimes.
It is mandatory that a judge in a case must order a person convicted of the designated offences to comply with the registration provisions of SOIRA. If the accused person receives an absolute discharge or conditional discharge for a designated offence they will not be ordered to register.
Young offenders are not subject to the Sex Offender Registry unless, unless they are sentenced as an adult. It is possible for someone to apply for termination of their registration order for the Sex Offender Registry.