Toronto Sexual Assault Lawyer
Choosing the right Toronto criminal defence lawyer is vitally important when facing a charge for a sexual offence. Merely being charged with a sexual offence carries with it a strong social stigma. Allegations of a sexual offence can lead to job loss, restrictions of the use of the Internet or a cell phone, and restrictions on where you can go in public. If one is convicted of a sexual offence, the consequences can be severe. Many of the sexual offences in the Criminal Code also carry mandatory minimum prison terms, as well as mandatory registration with the Federal Sex Offender Registry.
Brian Weingarten Defence Law understands the sensitive nature of sexual offence charges and will handle your matter skillfully and with the outmost discretion.
What Types of 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.
What is Child Pornography and What are the Different Child Pornography Offences?
Section 163.1 of the Criminal Code contains a comprehensive multi-subsection definition of “child pornography. Specifically, the section states:
163.1 (1) In this section, “child pornography” means
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;
(b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act;
(c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or
(d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.
There are four general categories of child pornography offences. These are
- Making, printing, publishing child pornography;
- Transmitting, making available, or distributing child pornography;
- Possession of child pornography;
- Accessing child pornography.
What Are the Penalties for Child Pornography Offences?
The penalties for child pornography offences have always been quite severe. However, recent amendments to the Criminal Code have lengthened the mandatory minimum sentences applicable to child pornography offences.
For the offences of making or transmitting/distributing child pornography, the mandatory minimum sentence has been increased to 6 months in jail where the matter proceeds by way of summary conviction. If the matter proceeds by way of indictment, the maximum penalties are 10 years in jail and a minimum sentence of 1 year in jail.
For the offences of possession or accessing child pornography, the maximum penalty is a term of imprisonment for 5 years and a minimum term of 6 months where the matter proceeds by way of indictment. Where the matter proceeds summarily, the minimum punishment is 90 days in jail.
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.
What Other Legal Consequences Flow From a Conviction for a Sexual Offence?
There are a certain ancillary orders that may flow from a conviction for certain sexual offences. Most of sexual offences are classified as primary designated offences. This means that upon conviction, an order will be made requiring the accused to provide a sample of their DNA for the national DNA databank.
A second ancillary order that will be made upon a conviction for select sexual offences is the requirement 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 if 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.