Toronto Sexual Assault Lawyer
Sex Assault and sexual offence charges are extremely serious. Merely being charged with sexual assault carries with it a strong social stigma. Allegations of sexual assault can result in job loss, and significant restrictions of one’s liberty while the case is pending. A conviction for sexual assault can also carry a significant jail sentence. Brian Weingarten has successfully defended client’s facing sexual assault, and historic sexual assault charges. Brian understands the sensitive nature of sexual assault charges and will handle the matter skillfully and with the outmost discretion.
What Types of Sexual Assault and Sexual Offences Charges Are Contained in the Criminal Code?
The Criminal Code creates a wide range of sexual offence. Examples include:
• Sexual assault;
• Possession, making, distributing and accessing child pornography;
• Sexual exploitation;
• Sexual interference;
• Invitation to sexual touching;
What is Sexual Assault?
The Criminal Code sets out the penalty for sexual assault in section 271. The section states:
271. Everyone who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding 10 years and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding 18 months and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of 90 days.
The Code itself does not define the term “sexual assault.” Sexual assault first requires an assault within one of the enumerated categories contained in the general assault provisions of the Code (s.265). An assault will be classified as a sexual assault where it is committed in circumstances of a sexual nature where the sexual integrity of the complainant is violated. Whether the assault is committed in the circumstances of a sexual nature is to be determined objectively and is to be viewed in light of all of the circumstances. Factors such as the part of the body touched, the nature of the contact, and words or gestures accompanying the act will all be taken into account when determining whether the assault of a sexual nature.
What Are Possible Defences to a Sexual Assault Charge?
Where a sexual assault charge involves a complainant under the age of 16, it may be possible to argue that the accused held an honest but mistaken belief as to the age of the complainant. This defence, however, has been highly restricted by the Criminal Code. The defence is not applicable unless the accused took all reasonable steps to ascertain the true age of the complainant.
Where a sexual assault charge relates to a victim under the age of 16, it is no defence to argue that the complainant consented to the sexual activity.
In cases of sexual assault involving adults, it may be possible to argue that the complainant consented to the sexual activity. Again, the defence of consent is highly restricted. The defence will not arise where:
• Consent arises from the words or conduct of a person other than the complainant;
• The complainant is not capable of consenting to the activity;
• The accused induces the complainant to engage in the sexual activity by abusing a position of trust, power or authority;
• The complainant by words or conduct expressed a lack of agreement to engage in the sexual activity;
• The complainant, having consented initially, expresses by words or conduct, a lack of agreement to continue to engage in the sexual activity.
In some circumstances an accused may also be able to rely on the common law defence of “mistaken belief in consent.” However, the Criminal Code prescribes that the defence does not apply where:
• The accused’s belief arises from the accused’s self-induced intoxication;
• Recklessness or willful blindness concerning consent;
• The accused did not take reasonable steps in the circumstances to ascertain whether the complainant was in fact consenting.
I have Text Messages From the Complainant, Can We Use These to Help Our Case?
The answer is: it depends. The ability to use text messages as part of the defence case depends upon the following factors:
1) The relevance of the messages;
2) The authentication of the text message evidence;
3) The admissibility of the text messages.
Each of these factors is complicated.
The issue of relevance depends upon the nature of the messages and the use to be made of the material. Evidence will be relevant where the tendency of the evidence, as a matter of logic, common sense and human experience, to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence.
Anytime electronic evidence is sought to be introduced, the party seeking to introduce the evidence must prove its authenticity. Often, clients will provide counsel with snippets of a text message conversations. It is important to prove the continuity of the evidence, as well as the demonstrating the entire context of the conversation. In some cases, expert evidence might be required to prove the continuity of the evidence, as well as its authenticity.
Finally, amendments to the Criminal Code have placed new restrictions upon the use of “records” including: social media, text messages, and other electronic defence evidence, in sex assault cases. A formal court application, along with notice of the materials and the purpose of the materials, will be required where the “records” raise the potential reasonable expectation of privacy of the complainant. The procedure for dealing with the admissibility of such records is set out in several sections:
Definition of record
278.1 For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.
Admissibility — accused in possession of records relating to complainant
278.92 (1) Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused — and which the accused intends to adduce — shall be admitted in evidence in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:
(a) an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3; or
(b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.
Requirements for admissibility
(2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94,
(a) if the admissibility of the evidence is subject to section 276, that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or
(b) in any other case, that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
Factors that judge shall consider
(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences;
(d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(e) the need to remove from the fact-finding process any discriminatory belief or bias;
(f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(g) the potential prejudice to the complainant’s personal dignity and right of privacy;
(h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(i) any other factor that the judge, provincial court judge or justice considers relevant.
Application for hearing — sections 276 and 278.92
278.93 (1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 278.94 to determine whether evidence is admissible under subsection 276(2) or 278.92(2).
Form and content of application
(2) An application referred to in subsection (1) must be made in writing, setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial, and a copy of the application must be given to the prosecutor and to the clerk of the court.
Jury and public excluded
(3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.
Judge may decide to hold hearing
(4) If the judge, provincial court judge or justice is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or any shorter interval that the judge, provincial court judge or justice may allow in the interests of justice and that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under section 278.94 to determine whether the evidence is admissible under subsection 276(2) or 278.92(2).
Jury and public excluded
278.94 (1) The jury and the public shall be excluded from a hearing to determine whether evidence is admissible under subsection 276(2) or 278.92(2).
Complainant not compellable
(2) The complainant is not a compellable witness at the hearing but may appear and make submissions.
Right to counsel
(3) The judge shall, as soon as feasible, inform the complainant who participates in the hearing of their right to be represented by counsel.
Judge’s determination and reasons
(4) At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part of it, is admissible under subsection 276(2) or 278.92(2) and shall provide reasons for that determination, and
(a) if not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted;
(b) the reasons must state the factors referred to in subsection 276(3) or 278.92(3) that affected the determination; and
(c) if all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.
Record of reasons
(5) The reasons provided under subsection (4) shall be entered in the record of the proceedings or, if the proceedings are not recorded, shall be provided in writing.
What Are the Penalties for a Sexual Assault Conviction?
Section 271 provides the following penalties for a sexual assault conviction:
271 Everyone who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
The maximum penalties are much higher for convictions for aggravated sexual assault, and sexual assault with a weapon.
There are also certain ancillary orders that may flow from a sexual assault conviction. Upon conviction, an order will be made requiring the accused to provide a sample of their DNA for the national DNA databank.
Upon conviction, an order that will be made that the individual register with the sex offender registry as required by the Sex Offender Information Registration Act ( SOIRA order). A SOIRA order ends 10 years after it was made if the offence was prosecuted by way of summary conviction or if the maximum term of imprisonment was between 2 to 5 years. The order lasts for 20 years if the maximum penalty for the offence is 10 or 14 years. The order will last for life if the maximum penalty for the offence is life imprisonment.
What is a s. 810.1 Recognizance?
In cases where it is alleged that an accused committed a sexual offence with respect to a complainant under the age of 16, or where an individual has already been convicted of such an offence, the Crown might bring an application asking the court to impose a s. 810.1 recognizance on the accused. A s. 810.1 recognizance is a type of “peace bond” that is sought as a preventative measure.
A s. 810.1 recognizance may be laid where there are reasonable grounds to fear that a sexual offence may be committed against any person under 16 years of age. A s. 810.1 recognizance therefore places restrictive conditions on an individual for up to 12 months. A s. 810.1 recognizance is not a criminal offence, nor is it a conviction. However, breaches of any of the conditions imposed on an individual may lead to further criminal charges for failing to comply with the recognizance.
The conditions that may be imposed on a s. 810.1 recognizance can be quite restrictive. Examples of the conditions that might be ordered are:
• Not to have any contact with a person under the age of 16;
• Not to use the internet or any other digital network;
• Not to attend a park or public swimming area where persons under 16 are present or can reasonably be expected to be present;
• Participate in a treatment program;
• Wear an electronic monitoring device;
• Remain within a specified geographic area;
• Remain at his or her specified residence for specified periods of time;
• Abstain from the consumption of drugs or alcohol.