Sexual Assault Defence Lawyer in Toronto

What Is Sexual Assault?

Sexual assault is any intentional touching of a sexual nature that occurs without the other person’s consent. It does not require violence or penetration and the charge can arise from a wide range of conduct.

Consent is the central issue in most sexual assault cases. Under the law, consent must be freely and voluntarily given at the time the activity occurs. (Ewanchuck) It cannot be assumed in advance, and it can be withdrawn at any time. The Crown must prove beyond a reasonable doubt that consent was absent.

The age of consent in Canada is 16. There are some limited exceptions for young people who are close in age, but any sexual activity involving a person under 16 can give rise to serious criminal charges.

What Are the Different Types of Sexual Assault Charges?

The Criminal Code sets out several sexual offences, each carrying different penalties:

Sexual Assault – Section 271

This is the most common charge. It covers a broad range of non-consensual sexual touching. The Crown can proceed either as a less serious (summary) or more serious (indictable) offence. There is no mandatory minimum sentence, but convictions can result in significant periods of custody depending on the facts.

Sexual Assault with a Weapon or Causing Bodily Harm  – Section 272

This charge applies when a weapon is used or when the complainant suffers bodily harm. The maximum sentence is 14 years. Where a firearm is involved, there is a mandatory minimum sentence of four to five years in custody.

The law defines “weapon” broadly. It can include any object used or intended to threaten, intimidate, or injure: from a belt to a bottle.

Aggravated Sexual Assault -Section 273

This is the most serious sexual offence in the Criminal Code. It applies when the accused wounds, maims, disfigures, or endangers the life of the complainant. It carries a maximum of life imprisonment.

Sexual Interference – Section 151

This charge arises when the alleged activity involves a complainant under the age of 16. The Crown must prove that the accused knew (or was reckless / willfully blind) to the complainant’s age.

How does the Crown prove the charge and What Defences can my Lawyer Advance?

Every case is different, and the right defence depends on the specific facts.

Identity

The Crown must prove beyond a reasonable doubt that the accused is the person who committed the offence. That issue may not always be relevant. It is often clear who were the parties to the sexual encounter. Where the complainant claims that there she does not know who sexually assaulted her, the question may turn on DNA evidence.

Consent

Where the complainant consented to the activity, this is a complete defence. But it is more than a positive defence, it is a question of proof beyond a reasonable doubt. In theory an accused person does NOT need t prove consent rather the Crown must prove beyond a reasonable doubt that the complainant did not consent. This is a question of the complainant’s credibility. The central question is, is the complainant telling the truth. To assist in challenging the complainant’s version of events, we gather all relevant evidence which may include  text messages, prior communications, surveillance, and possible witness accounts of what occurred leading up to the sexual encounter.

Honest but Mistaken Belief in Consent

Even where it can be proven that the complainant is telling the truth and she did not consent subjectively, the law recognizes that an accused may have honestly and reasonably believed that consent was given. This defence focuses on what the accused understood at the time, and whether they took steps to confirm consent.

Mistaken Belief in Age

In cases involving younger complainants, the accused may have a defence if they took, what the courts have defined as “reasonable steps” to determine the complainant’s age. This is a fact-specific analysis that depends on the particular circumstances.

What will the Trial look like?

Where the charge allows it, you have the right to choose how your case is heard: by a judge sitting alone, or by a judge and jury. This decision belongs to you – but your lawyer has a duty to walk you through it carefully.

Judge Alone or Judge and Jury?

A jury trial means twelve people from the community must all agree that you are guilty before a conviction can follow. If even one juror has a reasonable doubt, you cannot be convicted. This can be an advantage in cases where the evidence is contested and credibility is the central issue.

A judge-alone trial can be preferable in cases that turn on complex legal arguments, or where the specific facts are better assessed by an experienced judge.

At Bytensky Shikhman, we walk every client through this decision. We explain what it means in the context of your specific case, the anticipated evidence, and our experience in the courtroom. This is not a decision we take lightly, and neither should you.

The Sex Offender Registry (SOIRA)

A conviction for a sexual offence will in most cases require you to register with the Sex Offender Information Registration Act (SOIRA) database. Registration carries ongoing reporting obligations and can affect where you live and work. Avoiding a conviction and challenging the order is a priority in every case we handle.

Pre-Trial Applications: Where Cases Are Won and Lost

Sexual assault cases do not begin at trial. Much of the work ( and what often determines the outcome ) happens before a single witness takes the stand.

Pre-trial applications are the mechanism through which your lawyer challenges the evidence the Crown intends to use, and fights to admit the evidence that supports your defence.

The Criminal Code imposes a series of strict evidentiary rules that apply specifically to sexual assault cases. Understanding what those rules are, and how to navigate them, is one of the most important things an experienced criminal defence lawyer brings to your case.

Section 276: Prior Sexual Activity Evidence

Section 276 of the Criminal Code restricts evidence about a complainant’s sexual history. The law prohibits two specific inferences: known as the “twin myths.”

• Twin Myth 1: That a complainant is more likely to have consented to the activity in question (as a result of sexual history, preferences etc)
• That a complainant is less believable as a witness (as a result of sexual history, preferences etc)

Section 276 does not bar all evidence of prior sexual activity. Where that evidence is relevant for a reason other than supporting one of those two myths –  for example, to explain prior communications between the accused and the complainant, or to establish the nature of the relationship –  it can be admitted. But it requires a formal written application and an in-camera hearing before the judge rules on what can and cannot be used at trial.

This application is often one of the most consequential steps in a sexual assault defence. Evidence of prior communications, the nature of the relationship, or what was said and agreed to before the alleged incident can be central to the defence theory.

Failing to bring this application properly, or failing to frame its purpose correctly, can result in critical evidence being excluded entirely.

Section 278: Obtaining Private Records

In many sexual assault cases, records held by third parties (therapists, schools, children’s Aid Society, hospitals) may contain information that is relevant to the defence. Accessing those records requires a court application.

The regime governing this process is found in sections 278.1 to 278.91 of the Criminal Code. It applies to any record containing personal information in which the complainant has a reasonable expectation of privacy. That includes medical, psychiatric, and therapeutic records, counselling notes, personal journals, employment and school records.

How the Process Works

The application proceeds in two stages before a judge, with the Crown, defence counsel, and in most cases counsel for the complainant present.

• Stage One – your lawyer files a written application identifying the records sought and explaining why they are likely relevant to an issue at trial. If the threshold test is met, the records are produced to the court ( not to the defence ) for review.
• Stage Two – after reviewing the records, the judge weighs the accused’s right to full answer and defence against the complainant’s privacy interests, the probative value of the records, and other factors. If production is warranted, the relevant portions are disclosed to the defence.

This is a carefully controlled process. Records are not handed over automatically, and the judge has broad discretion to limit what is produced. But where relevant records exist, this application is often essential to a thorough defence.

Section  278: Records Already in the Accused’s Possession

Since 2018, the Criminal Code also requires a court application before the defence can use private records already in the accused’s possession ( including text messages, emails, photographs, and other personal communications).

This rule is significant. Communications between an accused and a complainant are frequently some of the most important evidence in a sexual assault case. Handling the application correctly: timing it properly, framing it precisely, and anticipating the Crown’s response, can be the difference between that evidence being heard and being excluded.

Contact Bytensky Shikhman

Facing a sexual assault charge is one of the most serious accusations that someone can face. The consequences reach far beyond the courtroom.

At Bytensky Shikhman, sexual assault defence is the core of what we do. It’s one of the areas of law we practice the most. The law surrounding sexual assault in Canada has become extraordinarily complex; Parliament has legislated procedural requirements and strict timelines in ways that make experienced criminal defence lawyers indispensable.

Decisions made early in your case – what to say, what evidence to preserve, what motions to bring – can determine the outcome.

Call us for a confidential consultation.

Your freedom and your future are worth fighting for.