Sexual assault is a serious offence. The stigma associated with sexual assault can damage a person’s reputation, livelihood and personal life beyond repair. It is imperative you choose an experienced and capable lawyer if you are charged with sexual assault.
The team at KIVLAW Barristers defend against sexual assault charges throughout Ontario and frequently appear in courts across the Greater Toronto Area (GTA) in addition to the Toronto courthouses including Brampton, Oshawa, Newmarket, Hamilton, Burlington, Oakville, Milton, the Niagara Region (including St. Catharines), Guelph, Kitchener and Waterloo, and Woodstock.
Robert Kivlichan is recognized as an emerging authority on the law of sexual assault and sexual-related offences and has defended numerous sexual assault cases throughout Ontario.
Robert Kivlichan frequently works with the media to mitigate any bad publicity from sexual assault allegations and, once the client is acquitted in court, can ensure the media clears the client’s name.
If you are charged with sexual assault, do not fall prey to lawyers who claim expertise in this emerging area but cannot provide the same level of confidence as the team at KIVLAW Barristers. Robert Kivlichan frequently represents medical professionals, teachers, nurses and dentists charged with sexual assault and other sexual offences. It is imperative you understand your fundamental rights and only a lawyer with the knowledge and expertise in this sensitive area of the law can defend your rights.
When is an Offence a Sexual Assault?
To determine if an allegation meets the threshold for sexual assault, the court analyzes the area of the body touched, the nature of the physical contact, words and/or actions including threats, and the presence or absence of sexual gratification. However, for an assault to be sexual in nature, it is not required to have sexual gratification.
What Should I do When the Police Contact Me?
You should always consult with a lawyer before you speak with the police about ANY offence, but especially sexual assault and sexual offences. Even if you know the allegations are false and the complainant is lying, it is essential you speak with an experienced lawyer before speaking to the police.
An experienced criminal lawyer can provide you with legal advice about whether it is in your best interest to speak with the police. It is important the accused knows their rights BEFORE they speak to the police and potentially harm their defence.
At KIVLAW Barristers, we often tell the client that once the police decide to lay charges, there is no talking yourself out of it. Indeed, anything you say WILL be used against you in court.
Further, once the police have receive a sexual assault complaint, they will almost certainly lay criminal charges. This is a matter of public policy and the police and Crown prosecutors often do not have the discretion to withdraw the charges or prevent charges from being laid in the first place.
Criminal Code of Canada (CC) and Sexual Assault
Section 265 of the Criminal Code of Canada states the following:
A person commits an “assault” when:
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. obtained where the complainant submits or does not resist by reason of the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
(3) Where the accused alleges that he believed that the complainant consented to the conduct that is the subject matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
Age of Consent in Canada
The Criminal Code states the age of consent in Canada is 16. If a person is under the age of 16, they cannot legally consent to sexual activity with another person or adult. If a person under the age of 16 engages in sexual activity with an adult, the act is automatically considered sexual assault because consent is not possible under the circumstances.
If a person is 12-13 years old, they can legally consent to sexual activity with someone less than two years their senior, provided:
- There is no position of trust or authority,
- There is no relationship of dependency, and,
- The relationship between the 12-13 year-old and the other person does not exploit the 12-13 year-old.
Close in Age Exception
If a person is 14 or 15 years old, they are legally able to consent to sexual contact with someone who is less than five years older than them, so long as the other person:
- There is no position of trust or authority,
- There is no relationship of dependency, and,
- The relationship between the 14-15 year-old and the other person does not exploit the 14-15 year-old.
If a 14-15 year-old is married, they are able to consent to sexual activity with their husband or wife.
If a person is under age 16 and none of these exceptions apply to that person, the underage person cannot consent. For instance, if a 15 year-old consents to sexual activity with a 25 year-old, the consent is void and the 25 year-old can be liable for sexual assault. One exception is if the 25 year-old believed the 15 year-old was 16 or older and they took reasonable steps to ascertain the 15 year-old’s age.
The Crown’s Burden of Proof
A sexual assault is established by the proof of three elements:
- intentional touching;
- the sexual nature of the contact; and,
- the absence of consent.
What is Consent?
A central issue is the vast majority of sexual assault cases is the presence of consent which is a voluntary agreement between the parties to engage in sexual activity.
When is There No Consent?
Consent does not exist in the following circumstances:
- where consent is provided by a third party through words or actions;
- the complainant’s mental state voids consent (intoxication, mental illness, etc.);
- the complainant is coerced into sexual activity by the accused abusing a position of trust or authority;
- the complainant demonstrates a lack of consent through words or actions;
- After initially expressing consent to sexual activity, the complainant expresses a desire to stop or discontinue the sexual activity; or,
- The complainant is under the age of 16 (Note: this is subject to the “close-in-age exception outlined above).
Mistaken Belief in Consent?
An honest but mistaken belief in consent can be raised if the accused establishes that they held a reasonable belief that the complainant gave consent through the words or actions.
However, an honest but mistaken belief in consent cannot stem from the following scenarios:
- self-induced intoxication;
- recklessness or willful blindness; or,
- the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
Was There Consent?
In order to determine if consent was given, the Court will look at the parties’ words, conduct, and reasonable steps taken by the accused to ascertain consent.
Words and conduct are important when establishing consent to sexual activity. The Court will not accept silence as a form of consent. More specifically, there is no such thing as implied consent to sexual activity.
The belief that the complainant’s silence, passivity or ambiguous conduct constituted consent does not provide a defence to a charge of sexual assault. It is essential for anyone accused of sexual assault to understand that the Court will always look at consent from the complainant’s point of view.
The central question for the court when establishing the existence of consent is whether the accused person believed that he had obtained consent through the complainant’s words or actions.
Once a person has said “No” in any form, the other party cannot continue to engage in any sexual activity. This includes any form of sexual touching. If the other party engages in any form of sexual touching after the complainant has indicated they no longer consent to sexual activity, the actions could result in a charge of sexual assault.
Lastly, a party to sexual activity must provide consent at every stage of the sexual activity. Therefore, if a party to sexual activity loses consciousness during the act, the sexual activity is no longer consensual and any further sexual touching may result in a charge of sexual assault under the Criminal Code.
Limits on Attacking Complainant Credibility?
If an accused person wishes to ask questions about an complainant’s prior sexual activity with anyone, the defence must bring a special application (Section 276 Application).
The Court may allow an accused person to ask questions about a complainant’s prior sexual history if it is relevant to an issue in the case and has significant probative value. Questions about a complainant’s prior sexual history, however, cannot be used to either suggest that the complainant is more likely to have consented to the sexual activity and/or should not be believed simply by reason of his/her prior sexual conduct.
Other Sexual Offences in the Criminal Code of Canada
Sexual Interference: section 151 of the Criminal Code criminalizes the act of touching a person under the age of 16 for a sexual purpose with your body or an object (s. 151 Criminal Code)
Invitation to Sexual Touching: s. 152 of the Criminal Code makes it a criminal offence to encourage someone under age 16 to touch another person’s body for a sexual purpose, with either the young person’s body or an object.
Sexual Exploitation of a Minor or a Person with a Disability: sections 153 and 153.1 of the Criminal Code states that if a person is under age 18, it is against the law for another person to have (or encourage) sexual contact with that person when:
- the other person is in a position of trust or authority;
- the person is in a relationship of dependency; or,
- the relationship is exploitative.
Further, if a person is in a position of trust or authority towards someone with a physical or mental disability, or if the person with a disability is in a relationship of dependency with the other person, there are circumstances where it is against the law to encourage the person with a disability to have sexual contact without their consent. (Criminal Code sections 153 and 153.1).
Incest and Bestiality: sections 155 and 160 of the Criminal Code It is against the law to have sexual intercourse with someone who you know is, by a blood relationship, your parent, child, brother, sister, half-brother, half-sister, grandparent, or grandchild. It is also against the law to have sex with an animal.
Voyeurism: section 162 of the Criminal Code states that in certain circumstances where a person has a reasonable expectation of privacy, it is against the law to observe or record that person, either in person, or with an electronic device such as a video camera.
Some (but not all) of the circumstances where this hidden or clandestine recording will be against the law include:
- where the person being recorded is reasonably expected to be nude or engaged in sexual activity; or,
- where the observation or recording is made for a sexual purpose. (Criminal Code section 162).
Child Pornography: section 163.1 of the Criminal Code states it is against the law to make, distribute, possess, or access child pornography. Child pornography has a broad definition, but it includes video or photographic depictions person(s) under 18 engaged in explicit sexual activity, and videos or photographs that have the dominant characteristic of depicting, for a sexual purpose, the sexual organ or anal region of a person under age 18.
Child Luring: Section 172.1 of the Criminal Code states it is against the law to use a computer system to communicate with a person who is under 18 years old for the purpose of engaging in sexual activity. This offence criminalizes using the Internet to communicate with under-age persons for the purpose of engaging in what would be illegal sex acts, e.g., using the Internet to ask a person under the legal age of consent to meet to have sex.
Indecent Acts: Section 173 of the Criminal Code states it is against the law to perform an “indecent act” in a public place in the presence of another person. Sex acts, such as masturbation, can fall under the definition of an “indecent act.” It is also against the law to expose your genitals to a person under age 16 for a sexual purpose.
Many of these sexual offences come with mandatory minimum jail sentences upon conviction, and mandatory orders that a person be listed on the Sex Offenders Registry.
Sentences for Sexual Assault
If an accused is found guilty of sexual assault, the sentence could range from no jail time to 10 years in jail. The length of time in jail or lack thereof depends on the Crown election. The Crown can elect to proceed by Indictment or by Summary Conviction.
In Canada, indictable offences are subject to higher fines and longer jail terms. Conversely, summary conviction offences have decreased fines and lower jail terms as opposed to indictable offences. The vast majority of offences in Canada, however, are known as Hybrid Offences; that is, the Crown can electwhether to proceed by indictment or by summary conviction.
This can have a dramatic effect on trial strategy and procedure. In a sexual assault case, if the Crown elects to proceed summarily or by summary conviction, the only trial option is a trial by Judge-alone in the Ontario Court of Justice.
If the Crown elects to proceed by indictment, the accused has significantly greater choice in trial procedure. An accused person has the following trial options when the Crown elects to proceed by indictment:
- Judge-alone trial in the Ontario Court of Justice;
- Judge-alone trial in the Ontario Superior Court of Justice; and,
- trial by Judge and jury in the Ontario Superior Court of Justice.
How a crown attorney chooses to proceed is entirely within their discretion and there are pros and cons to proceeding summarily or by indictment.
Since a sexual assault allegation can cover a wide range of behaviour from groping to full intercourse, each case must be considered individually in order to assess the appropriate punishment.
In sentencing, a judge will consider a number of factors when it comes to determining an appropriate punishment;. The factors considered by the court will include, but are not limited to, the following:
- the offender’s criminal record;
- the personal circumstances of the offender; and,
- the circumstances of the case, as well as the brutality or lack thereof during the assault.
This is by no means an exhaustive list but is meant to provide a general idea. If you require further information, please contact us today for a free consultation and the team at KIVLAW Barristers will be happy to assist.
Someone convicted of a sexual assault will also face the stigma of being placed on a national database of sex offenders for at least 10 years and be subjected to supervision by the police after conviction.
Sex Offenders Registry in Canada
The Canadian government has established a Sex Offenders Registry to track and monitor persons who have been convicted of sexual offences. The Sex Offenders Registry is not public information, and the names and addresses of persons on the registry are not made public. The Registry is used by police officers and certain other organizations to track sex offenders and investigate sexual offences.
The Sex Offender Information Registration Act (SOIRA) requires a person on the Sex Offenders Registry to register every year, and to provide the police with the following information:
- where they are employed, volunteering, or going to school;
- any licence plate numbers and descriptions of the vehicles that they use.
Persons on the Sex Offender Registry must also notify the police if they expect to be away from one of their residences for more than seven days.
If a person is convicted of certain sex offences, a judge has no discretion and is required to order that a person be added to the Sex Offenders Registry. The following are examples of where a judge must make a Sex Offenders Registry order:
- sexual assault;
- sexual interference; and,
- child pornography offences.
Sex Offender Registry orders last for a period of between 10 years to life, depending on the circumstances.
If you, or someone you know if facing a sexual assault charge, please call the team at KIVLAW Barristers for a consultation and advice on the best way forward.