Defending Sexual Assault Charges in Ontario
A sexual assault allegation can affect your freedom, relationships, employment and reputation. You need to understand the allegations, the evidence and your options before deciding how to respond. Lichtman Law provides criminal defence representation for people facing sexual assault charges in Toronto and across the GTA.
Whether police have contacted you, you have been arrested or your case is already before the court, we can help you understand the next steps and prepare your defence.
Understanding a Sexual Assault Charge
Sexual assault involves an assault that is sexual in nature and occurs without consent. The circumstances of the alleged contact matter. A charge is an allegation, and the Crown must prove every essential element of the offence beyond a reasonable doubt.
Cases may involve sexual assault under section 271 of the Criminal Code, sexual assault involving a weapon, threats or bodily harm, or aggravated sexual assault. The particular charge determines the legal issues and potential consequences.
The evidence may raise questions about identity, whether the alleged contact occurred, its sexual nature, consent and the accused’s state of mind. We review the specific allegations and Crown disclosure to identify what must be addressed.
Consent and Mistaken Belief in Communicated Consent
Under section 273.1 of the Criminal Code, consent requires voluntary agreement to the particular sexual activity at the time it takes place. A previous relationship or earlier sexual activity does not establish consent to a later encounter.
A person who is unconscious or otherwise incapable of consenting cannot consent. Agreement obtained through an abuse of trust, power or authority is not consent. Consent can also be withdrawn.
An honest but mistaken belief in communicated consent is a distinct and limited issue. It must be supported by evidence of affirmative words or active conduct communicating agreement. It cannot rest on self-induced intoxication, recklessness or wilful blindness, and the accused must have taken reasonable steps, in the circumstances known to them, to ascertain consent. Section 273.2 sets out these restrictions.
Read our guide to Consent and Mistaken Belief Defence →
Building Your Sexual Assault Defence
Reviewing the Evidence
We examine witness statements, messages, police notes, recordings and other available evidence. Depending on the case, credibility, reliability, identification and inconsistencies may be important. The defence must be grounded in the evidence and the applicable law.
Messages, Private Records and Sexual History
Relevant communications should be preserved, but possession of a message or record does not automatically mean it can be used at trial. Special rules govern sexual history evidence and certain private records. An application and advance court ruling may be required. Sexual history cannot be used to suggest that a complainant was more likely to consent or is less worthy of belief.
Charter Issues and Trial Preparation
We assess police conduct, including statements, detention and searches, for potential Charter issues. We also consider necessary applications, prepare for cross-examination and explain the decisions you will need to make. Available defences and remedies depend on the facts.
What to Do After an Allegation or Charge
- Speak with a criminal defence lawyer before deciding whether to give a statement to police.
- Preserve relevant messages and records in their original form. Do not delete, alter or circulate potential evidence.
- Follow every release condition. A complainant’s invitation does not override a no-contact order.
- Do not contact the complainant to discuss the allegation or seek a withdrawal. Obtain legal advice about any communication.
- Keep track of court dates and provide your lawyer with your release documents.
Bail, Resolution and Trial
If a bail hearing is required, preparation may include a release plan and proposed conditions. Release is separate from the ultimate decision about guilt or innocence.
After disclosure is available, we assess the Crown’s case, discuss your instructions and prepare the appropriate applications and trial strategy. Where appropriate, we also discuss resolution options and their consequences. No particular outcome can be promised.
Potential Consequences of a Conviction
A conviction can have serious consequences, including imprisonment and a criminal record. Sentencing depends on the offence, the circumstances, the applicable law and the individual’s situation. A case involving a child or other aggravating circumstances may carry additional consequences.
Sex offender registration, DNA orders and other court orders may also arise. Registration rules and possible exemptions require individual assessment. We explain the potential consequences relevant to your case so you can make informed decisions.
Youth Sexual Assault Charges
When the accused was under 18 at the time of the alleged offence, youth justice rules may apply. These cases require advice about the youth process, release conditions, sentencing and records.
