Sexual assault Lawyers in Canada

The Crown is the prosecutor. A person charged with an offence is presumed innocent until proven guilty, so the Crown has to prove the charge. That presumption is part of section 11(d) of the Canadian Charter of Rights and Freedoms.

Under section 265, a person commits an assault when, without the consent of another person, they apply force intentionally to that other person, directly or indirectly. Because section 271 builds on that definition, the absence of consent is part of the charge.

Consent has its own definition for sections 271, 272 and 273. Section 273.1(1) says consent means the voluntary agreement of the complainant to engage in the sexual activity in question. Section 273.1(1.1) says consent must be present at the time the sexual activity takes place.

Section 273.1(2) lists situations in which no consent is obtained. They include where the complainant is unconscious, where the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority, and where the complainant expresses, by words or conduct, a lack of agreement to engage in the activity or to continue. Section 273.1(3) says that list does not limit the circumstances in which no consent is obtained.

Sexual assault under section 271 is an offence that can be prosecuted either way. On indictment, the maximum is 10 years. If the complainant is under the age of 16 years, the maximum on indictment is 14 years and the section sets a minimum punishment of one year. On summary conviction, the maximum is two years less a day. If the complainant is under the age of 16 years, the section sets a minimum of six months. A maximum is the ceiling the law allows. It does not say what sentence a court would give in any case.

Section 272 covers a person who, in committing a sexual assault, carries, uses or threatens to use a weapon or an imitation of a weapon, causes bodily harm to the complainant, or chokes, suffocates or strangles the complainant, among other things. It is an indictable offence with a maximum of 14 years, and the section sets higher penalties and minimums where a firearm is used or where the complainant is under the age of 16 years.

Section 273 covers aggravated sexual assault, where in committing a sexual assault the person wounds, maims, disfigures or endangers the life of the complainant. It is an indictable offence with a maximum of life imprisonment.

Section 36 of the Immigration and Refugee Protection Act says a permanent resident or foreign national is inadmissible on grounds of serious criminality for having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years. Whether that applies to a particular person is a question for a lawyer who practises immigration law.

Whether a defence is open in a particular case depends on the evidence. Because the definition of consent in section 273.1 is part of the charge, one question is whether the complainant gave voluntary agreement to the sexual activity in question, at the time it took place. A lawyer can explain how courts have applied those words.

Section 273.2 limits one kind of argument. It says it is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented, where the belief arose from the accused's self-induced intoxication, recklessness or wilful blindness, or from a circumstance in which no consent is obtained. It also applies where the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

Section 276 controls what evidence about the complainant's sexual activity can be used. Evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant is more likely to have consented or is less worthy of belief. Evidence of other sexual activity shall not be adduced unless the judge determines, by procedures set out in other sections, that conditions in the section are met. In deciding, the judge takes into account the right of the accused to make a full answer and defence.

Charter rights apply from the start. Section 10 gives everyone on arrest or detention the right to retain and instruct counsel without delay and to be informed of that right. Section 11(b) gives a person charged with an offence the right to be tried within a reasonable time. Under section 24(2), evidence obtained in a manner that infringed Charter rights is excluded if admitting it would bring the administration of justice into disrepute.

Section 486.4(1) says that in proceedings for an offence under section 271, 272 or 273, among others, the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. Under section 486.4(2), the judge or justice shall make the order on application made by the victim, the prosecutor or a witness.

In Ontario, every charge under the Criminal Code starts in the Ontario Court of Justice, and about 95% of charges are completed there. The Superior Court of Justice can try any indictable offence but generally tries only the most serious ones. The court's own description names murder, manslaughter, serious violent offences such as aggravated assault and sexual assault, firearm offences, robberies, home invasions, criminal organization offences and drug trafficking. Trials in that court are by a judge alone or with a jury.

When a release decision is made, section 515 says the justice shall make a release order without conditions unless the prosecutor shows cause why detention in custody is justified or why another order should be made. Section 493.1 says the decision gives primary consideration to release at the earliest reasonable opportunity and on the least onerous conditions.

After a conviction on indictment, an appeal goes to the court of appeal. A person may appeal as of right on a question of law alone. An appeal on a question of fact, or of mixed law and fact, needs leave. So does an appeal against sentence.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel is a lawyer at the courthouse for that day. For people who qualify and have no lawyer, duty counsel can advise on rights, ask to delay a court date, act at a bail hearing, help with a guilty plea, speak at sentencing, and meet the Crown.

A legal aid certificate pays a roster lawyer, one approved to take legal aid clients, for the length of the criminal case. Applications are online or by phone at 1-800-668-8258.

The Law Society of Ontario keeps a public Lawyer and Paralegal Directory, which can be used to look up a lawyer. The Ontario lawyers on this site are listed by city. Nothing on this page ranks or recommends any of them.