Sexual Assault Lawyer Toronto
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Facing Sexual Assault Charges?
Get An Experienced Criminal Lawyer To Help Navigate And Make Sense Of The Complex Legal Nuances And Defend Your Rights.
When your personal and professional reputation is on the line, time is of the essence. In Canada, a sexual assault charge, arrest or mere accusation of a sex crime can lead to serious repercussions from the moment you are charged. Bytensky Shikhman lawyers in Toronto understand what’s at stake for you and will defend your rights with passion and professionalism, regardless of the size of the sexual assault case or the level of complexity.
We are skilled in diverse cross-examination techniques, powerful negotiation strategies and in providing a strong legal defence while applying strategic pressure on the prosecution. Our criminal lawyers have defended all manner of sexual assault cases, including charges of sexual assault with a weapon and aggravated sexual assault cases with an alleged physical injury.
How To Pick The Right Sexual Assault Lawyer In Toronto?
Sexual Assault Case Emphasis
All experience is not the same experience. With so much at risk, you need a criminal defence lawyer emphasising sexual assault cases. At Bytensky Shikhman, our lawyers have defended many complex sexual assault cases, in court and outside. Our strong track record is what’s earned us our stellar reputation in the industry.
The Right Balance Of Skills That Earn Trust
While you want to have a strong legal fighter in your corner, we know that you also need a professional you can believe and trust. At Bytensky Shikhman, our criminal defence lawyers have the right mix of compassion, sensitivity, knowledge, practical experience and grit.
Tedious Preparation Is Key
Our primary form of attack is tedious and thorough preparation when working on each case. Our sexual assault lawyers will get to work the minute they are retained, and start building a strong case through meticulous preparation and evaluation of every minute detail.
Cross-Examination That Gets Results
It is through exhaustive cross-examination, we evaluate our cases looking at every meaningful inconsistency. While medical evidence can play a significant role in many sexual assault allegations, often, the only evidence to work with comes from a single complainant. Therefore, it is incredibly important that a sexual assault lawyer can conduct a comprehensive and skilful cross-examination. Our lawyers at Bytensky Shikhman recognize when cases require subtle questioning and when to shift to a more aggressive or confrontational method.
We Speak The Language You Understand
While “legal” is our native language, we speak with our clients in a language they understand, leaving legal jargon behind. Our commitment, at Bytensky Shikhman law firm, is not only to fight the battle on your behalf, but to ensure transparency and your complete comfort in the process.
Understanding Your Sexual Assault Charge
The Canadian legal system is extremely complex. If you have been charged with sexual assault or another sexual offence, it is imperative that you understand your charges, how your case is viewed through the lens of the Criminal Code of Canada, the consequences that you are facing, and the course of action that you should be taking.
While picking a strong sexual assault lawyer will be a critical milestone and a deciding factor in the success of your case, knowing the facts will help you manage your expectations and prepare emotionally.
These are some of the common questions that our clients ask, pertaining to sexual assault cases.
What Is Sexual Assault?
Sexual assault is an act in which a person intentionally touches another person, in a sexual manner, without their consent. The touching, according to the Criminal Code, can be subtle or extremely violent. To be charged, one does not need to physically force another person to engage in a full sexual act, rather, sexual grabbing, kissing, fondling, touching, or even threatening to, can be sufficient to merit a criminal charge.
What Is Sexual Assault According To The Criminal Code Of Canada?
According to the section 265
(1), which defines this offence within the Criminal Code of Canada, a person commits an assault, including sexual assault, when:
(a) 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.
(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.
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of:
(a) 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.
(4) Where an 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.
What Is The Difference Between A Summary Conviction Offence And An Indictable Offence?
Most offences in the Criminal Code are hybrid, which means that Crown Counsel can decide whether to prosecute the matter by Indictment or Summarily. In other words, the same offence can be prosecuted through two different procedural streams. That decision is completely within the discretion of the Crown and can never be challenged. While prosecution by way of summary conviction can carry a lower sentence upon conviction, it will significantly hinder the way that you can defence your case.
What Does Summary Conviction Offence Mean?
Summary conviction cases can only be heard by a Judge in the Ontario Court of Justice, our provincial court. The accused person DOES NOT have a right to a Jury Trial.
If convicted of a summary conviction offence, the penalties can be significantly lower than if convicted of an Indictable offence.
What Does Indictable Offence Mean?
An Indictable offence is more serious, where depending on the degree of the offence, different sentencing and procedures will apply. A person who is charged with an Indictable offence can decide if they wish to have a trial in the Ontario Court of Justice (the Provincial Court) without a preliminary hearing and without a jury. However, if the person chooses, they have the option to proceed to a trial with a JURY.
The decision of how to defend your case has to be discussed in detail with your lawyer. What is best in one case, may not be best in another. It is likely to be one of the most important decisions in the defence of your case. Various considerations come into play. The criminal lawyers of Bytensky Shikhman will spend a significant amount of time selecting the proper strategy.
What Are The Different Levels And Types Of Sexual Assault?
While the Criminal Code DOES NOT explicitly distinguish between various acts which can comprise a sexual assault, the difference in the type of contact or touching and the circumstances in which it occurred, will dictate the way the Crown will prosecute the case and the sentence if one is convicted. For ease of reference and to assist in better understanding the differences, in the discussion below, the offences are divided into Levels.
Sexual Assault – Level 1
Section 271 of the Criminal Code of Canada
This offence criminalizes non-consensual physical contact of a sexual nature involving a violation of the sexual integrity of the victim. These types of assaults may or may not involve a full sexual act. Usually, this level of sexual assault involves minor or no bodily harm.
Penalty For Level 1 Sexual Assault
Often these offences are prosecuted by summary conviction and carry a maximum 18 month jail sentence upon conviction. If the victim is under 16 years of age, mandatory minimum penalties of 90 days’ imprisonment will apply if prosecuted by summary conviction. If prosecuted by Indictment, the potential penalties are much higher. Again, the decision of how to prosecute the case, by summary conviction of by indictment is within the complete discretion of the prosecution.
Sexual Assault With A Weapon Or Causing Bodily Harm – Level 2
Section 272 of the Criminal Code of Canada
This offence criminalizes sexual assault where a weapon is used, or where bodily harm is caused or threatened to another party.
Penalty For Level 2 Sexual Assault With A Weapon
This offence can only be prosecuted by Indictment. The maximum penalty is 14 years’ imprisonment and mandatory minimum penalties apply, including a five‑year mandatory minimum penalty where the victim is under 16 years of age.
Aggravated Sexual Assault – Level 3
Section 273 of the Criminal Code of Canada
This offence criminalizes the most serious forms of sexual assault involving wounding, maiming, disfiguring or endangering the life of the victim.
Penalty For Level 3 Aggravated Sexual Assault
This offence must also be prosecuted by Indictment. The maximum penalty is life imprisonment. Mandatory minimum penalties apply, including a five‑year mandatory minimum penalty where the victim is under 16 years of age.
What Other Types Of Sexual Offences In The Criminal Code Of Canada?
Invitation To Sexual Touching
involves inviting a minor under the age of 16 to touch directly or indirectly, the body of any other person.
Sexual Interference
involves touching a minor under the age of 16, whether directly or indirectly, for a sexual purpose.
Providing Sexually Explicit Material To A Child
is “grooming” a child using pornography in order to commit a sexual offence.
Luring A Child
involves communicating with a minor (under 16-18, depending on the circumstances) online to arrange or commit a sexual offence.
Voyeurism
involves the secret observation via recording of a person for a sexual purpose, where an expectation of privacy is present.
Sexual Exploitation
involves sexual contact by an adult with someone between the ages of 16-18, where the adult is in a position of trust or authority over the young person.
Publication Of Intimate Images Without Consent
involves someone knowingly posting, distributing or selling an intimate image, recording or video of another person without their consent.
What Is Considered To Be Consent?
Sexual consent is an agreement to participate in a sexual activity. By giving consent, you let someone know that sex is voluntary and wanted. Without consent, sexual activity will be considered a sexual assault and prosecuted to the full extent of the law.
What Is The Age Of Consent Under The Criminal Code Of Canada?
The age of consent to sexual activity in Canada, as outlined in the Criminal Code, is 16 years. Once the person reaches 16 years of age, they are legally able to agree to sexual activity.
What About 14 And 15 Years Of Age?
There are, however, exceptions with close in age instances. A 14 or 15-year old person can consent to sexual activity as long as their partner is less than five years older and there is no relationship of trust, authority or dependency or any other exploitation of the young person. If the partner of a 14 or 15-year old is more than 5 years older, any sexual activity is considered to be a criminal offence.
What About 12 And 13 Years Of Age?
Another close in age exception is for 12 and 13-year old children. A 12 or 13-year old can consent to sexual activity with their partner if the partner is less than two years older and there is no relationship of trust, authority or dependency or any other exploitation of the young person. Again, this means that if the partner is more than 2 years older than the 12 or 13-year old, any sexual activity is considered a criminal offence.
Note: In Canada, children under 12 years of age cannot legally consent to sexual activity.
Sentence For Sexual Assault And Sexual Offences
Sentencing for sexual assault and sexual offence cases vary greatly from a fine or probation with no time in prison, to maximum sentences of 18 months, 10 years or even life in prison.
In deciding what sentence to impose, the judge looks at:
- the seriousness of the offence;
- the type of touching;
- the circumstances surrounding the offence;
- the harm to the victim;
- the amount of force used by the offender;
- the offender’s attitude towards the crime;
- the offender’s previous criminal record;
- the kinds of sentences that have been given for similar offences; and
- the message that it would send to others in the community.
Should You Speak To Lawyer Or Police First In Allegations Of A Sexual Offence?
The right answer is that you should always speak to a knowledgeable and experienced lawyer first, before speaking with the police. In Canada, it is your right to remain silent and this right is protected by the Charter of Rights and Freedoms.
While you have no obligation to provide any information to the police, you might have to provide your name, address and date of birth, in the case of arrest.
Otherwise, anything you say to the police, at any time, “on the record” or “off the record”, will be used against you. Which is why it is best to retain a strong Sexual Assault lawyer as the first step if you have either been arrested or even just accused of a sexual assault crime.
The biggest mistake that people often make when facing allegations of this type of crime is delaying speaking with a lawyer. As time passes, the prosecutors and police have additional time to prepare the evidence against you. At Bytensky Shikhman, our Toronto lawyers know the strategies that the prosecutors will use, so you can rest assured that our knowledge and expertise in the field of sexual assault defence will be a strong match.
What Are The First Steps To Take After Allegations Of Sexual Assault Or Arrest?
- Be proactive, speak with a Toronto Sexual Assault Lawyer, who will instruct you what and how to gather evidence to support your case;
- Know your facts and understand your rights;
- Do not sign or say anything without first obtaining your lawyer’s advice.
Determining If There Was Consent Or A Mistaken Belief In Consent
Where a person is charged with sexual assault, he must convince the judge or the jury that consent was in fact given. The deciding factors in establishing the reasons to believe that the sexual activity was consented to will include the client’s testimony, along with many other factors of how the consent was communicated.
Another route to take would include a person accused in a sexual assault case to testify to a mistaken belief in consent. It is a matter of the state of mind of the accused, which means that the accused could be acquitted of sexual assault even if there is no consent to the sexual act as long as the accused genuinely believed that consent was given and communicated through the actions or words of the victim.
In Canada, a mistaken belief in consent according to the Criminal Code is NOT a defence in the following scenarios:
(i) self-induced intoxication;
(ii) recklessness or wilful blindness (i.e. accused was aware of a risk of a lack of consent, yet proceeded anyway and when the accused has intentionally obstructed their ability to recognize consent or lack thereof);
(iii) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to confirm that the complainant was consenting.
What Evidence Can Be Used In Sexual Assault Cases? And What Evidence Can Be Used To Defend A Sexual Assault Charge?
In Canada, while the victim’s testimony will usually be the most important evidence in a sexual assault case, other evidence can also be used. Most of the time, the complainant’s statement is the only DIRECT evidence of the alleged assault- meaning it is often the only source of what happened during the incident (since most incidents are not captured on video). However, to substantiate the complainant’s version of events, the police will attempt to obtain circumstantial evidence- namely, any evidence that would confirm the circumstances of what happened before and after the incident.
By the same token, that same kinds of evidence can be used to discredit a complainant’s version of events. Here is a list of evidence the police will look to and that you should attempt to retain to demonstrate your side of the story. Upon retaining a criminal lawyer from Bytensky Prustchi Shikhman, you will tasked with compiling a list of all the possible sources that can be of assistance in challenging the complainant’s allegations. We will of course assist you in identifying all the relevant sources and will then start tracking all the evidence helpful to you.
- witness testimony,
- witness statements,
- forensic evidence,
- photographic evidence,
- statements and/or admissions against interest;
- phone records;
- text/ email communications;
- video surveillance;
What Is The Sex Offender Registry In Canada?
The Sex Offender Registry is Canada’s national database of all convicted sex offenders. The system was created as a result of the National Sex Offender Information Registration Act (SOIRA) in order to prevent and investigate crimes of a sexual nature and identify sex offenders living within a particular geographic area.
The registry tracks and monitors sex offenders and requires their annual registration and check-in with the police in order to provide the most up-to-date information on their employment, their address, phone number, the car they drive, and if they are volunteering anywhere.
The system is not available for public access.
The database tracks the following information on the offenders:
- name
- date of birth
- current address
- current photograph
- identifying marks (e.g. tattoos, scars)
- vehicle information
- type of employment and address
- sex offence(s) for which the offender has been convicted
- provincial driver’s license
- passport information
Once convicted under any of the following offences, as listed under the Sex Offender Information Registration Act (SOIRA), the judge may make an order to have the convicted defendant added to the Sex Offender Registry.
Offences under the SOIRA:
- sexual interference
- invitation to sexual touching
- sexual exploitation
- incest
- bestiality (compelling the commission of; and in presence of or by a child)
- child pornography (making, possession, distribution)
- parent or guardian procuring sexual activity
- exposure
- sexual assault
- sexual assault with a weapon, threats to a third party or causing bodily harm
- aggravated sexual assault
- select offences where it can be proven that the offence was committed with the intent to commit an offence of a sexual nature
- attempt or conspiracy to commit any of the above offences
Reach out to an experienced criminal lawyer with Bytensky Shikhman law firm, if you have been arrested or charged with any of these sexual offences.
How To Be Taken Off The Sex Offender Registry In Canada?
A registered sex offender can apply to be taken off the Sex Offender Registry before the order, set by the judge, ends.
Depending on the circumstances, if the order is for 10 years, the person can apply after 5 years of being on the registry. If the order is for 20 years, the person can apply after 10 years of being on the registry. If the order is for life, typically, the sex offender can apply after 20 years of being on the registry.
The success of the application cannot be guaranteed, as the process is quite complicated. Get in touch with one of our lawyers at Bytensky Shikhman law firm to get professional assistance with the application process.
Sexual Assault FAQ
What is sexual assault?
Sexual assault legally refers to any non-consensual sexual contact. In Canada, sexual assault is a very broadly defined offence which can range from unwanted kissing, grabbing or touching a person’s breasts, genitals or buttocks, to digital, anal or vaginal penetration.
What is the difference between sexual assault and rape?
In the media, the terms sexual assault and rape are often times used interchangeably. In the legal world, however, they have different meanings. The Criminal Code only criminalizes the offence of sexual assault. The term “rape” has not been used as a legal term in Canada since 1983.
That being said, what people commonly understand to be “rape” is certainly illegal in Canada. The offence of sexual assault, as defined in the Criminal Code, encompasses any acts that would be considered “rape”. In other words, in Canada, sexual assault and rape are no longer two separate criminal offences. Sexual assault is the offence, and rape is one of the acts it encompasses.
What are the levels or types of sexual assault?
Many clients ask what the various “levels” or “types” of sexual assault are. In some countries, the terms “first-degree sexual assault”, “second-degree sexual assault”, etc. are used. In Canada, we do not use these classifications or “degrees” for sexual assault. Rather, there are three categories of sexual assault in Canada:
- Sexual assault (s. 271 of the Code) – as set out above, this definition captures a wide range of conduct from unwanted kissing or touching to various forms of penetration. It also includes the threat of sexual force or touching.
- Sexual assault with a weapon, threats to a third party(s. 272 of the Code) – this is a separate listed offence in the Criminal Code and includes instances where the person committing a sexual assault:
- Carries, uses, or threatens to use a weapon or imitation weapon;
- Threatens to cause bodily harm to a person other than the complainant;
- Causes bodily harm to the complainant;
- Chokes, suffocates or strangles the complainant; or.
- Is a party to the offence with any other person.
- Aggravated sexual assault – this is the most serious form of sexual assault in Canada and refers to a sexual assault that wounds, maims, disfigures or endangers the life of the complainant.
Similarly, in Canada, we do not use American terminology such as sexual battery or felony sexual assault.
How long do sexual assault cases take?
In Canada, sexual assault is considered a “hybrid” offence. This means the Crown Prosecutor can choose to proceed by summary conviction or by Indictment. Generally speaking, summary conviction refers to “less serious” conduct (for example, if the alleged sexual assault is a kiss or over the clothes touching, the Crown may choose to proceed summarily). This also means your trial will take place in the lower provincial court, known as the Ontario Court of Justice and there are lower maximum sentences that apply.
For more serious conduct, and for the majority of sexual assault offences, the Crown will elect to proceed by Indictment. This means you will have the choice on whether to have your trial in the Ontario Court of Justice (with a judge) or in the Superior Court of Justice (with a judge-alone or a judge and jury). There are also higher maximum sentences that apply.
If your trial proceeds in the Ontario Court of Justice, the court has up to 18 (1.5 years) months from the time of your arrest to the end of your trial. If your trial proceeds in the Superior Court of Justice, the court has up to 30 months (2.5 years).
What is the statute of limitations for sexual assault?
Like all criminal offences in Canada, there is no statute of limitations with respect to being charged criminally with a sexual assault offence. It is possible, and it does happen, to be charged with a sexual assault years, even decades, after it is alleged to have occurred. These are referred to as “historic” sexual assaults. They are not a separate time of offence under the Criminal Code. The important thing to note, however,
What is the difference between sexual assault, sexual interference and invitation to sexual touching?
Sexual interference is a separate criminal offence from sexual assault. It is set out in s. 151 of the Criminal Code. Sexual interference refers to a sexual assault against someone who is under the age of 16. Due to the complainant’s age, the complainant cannot legally consent. The Crown Prosecutor will need to show that you (1) touched the complainant for a sexual purpose and (2) that you knew the complainant was under the age of 16 (or that you did not take reasonable steps to determine the complainant’s age).
Invitation to sexual touching is also a separate and distinct criminal offence from sexual assault and sexual interference. It is set out in s. 152 of the Criminal Code. The offence is defined as inviting anyone under the age of 16 to touch the body of another person, either directly or indirectly, with a sexual purpose. Like sexual interference, consent is not a defence because the person is not legally capable of consenting.
Sexual assault, unlike sexual interference or invitation to sexual touching, does not require proof of a sexual purpose. Sexual assault does not require any sexual gratification – rather, it is focused on the sexual nature of the touching.
What is the age of consent in Canada?
The age of consent refers to the age an individual can legally agree to participate in sexual activity with another person. In Canada, the age of consent is generally 16 years of age. There are, exceptions, however, when the parties are close in age to one another:
- A 14 or 15 year old can consent to sexual activity where their sexual partner is less than five years older than them and there is no relationship of trust, authority or other exploitation between them.
- A 12 or 13 year old can consent to sexual activity as long as their sexual partner is less than two years older than them and there is no relationship of trust, authority or other exploitation between them.
Will I go to jail for sexual assault?
Every case is different. Can you go to jail for sexual assault? Absolutely. The potential sentencing ranges for sexual assault is quite broad, but jail is a real possibility for many sexual assault cases. Sentencing, however, is an individualized process and will depend on a number of factors including whether you have a criminal record, your personal circumstances, and the nature of the alleged touching. As noted above, the offence of sexual assault in Canada covers a wide range of conduct from a stolen kiss to penetrative intercourse – as a result, each case must be considered individually to assess the appropriate outcome.
There are also additional consequences such as being placed on a provincial and national database for registered sex offenders. There may also be immigration consequences, travel consequences and employment consequences particularly for regulated professionals. Please contact us at 416-365-3151 to better understand the unique consequences you may be facing following a sexual assault conviction and to better understand any potential minimum or maximum sentences that apply to your case.
What is the best way to win a sexual assault case?
Sexual assault charges are very serious and have the potential to have very serious consequences on your life. You could be sentenced to jail and have to register on the Sex Offender Registry. Beyond any sentence or punishment you may receive in court, sexual assault allegations carry significant stigma and can result in significant personal and/or professional impacts.
While every case is different, and there are no guarantees, the best way to protect yourself and maximize your chance of success at trial, is to hire an experienced sexual assault lawyer. Sexual assault trials have become increasingly complex and an experienced lawyer is best equipped to navigate complicated legislative requirements for pre-trial motions.
If you are facing sexual assault charges, you should contact a lawyer as soon as possible. The lawyers at Bytensky Shikhman Barristers have significant experience defending sexual assault allegations successfully. The lawyers at Bytensky Shikhman Barristers will work closely with you to review all of the evidence against you, to gather any potential evidence including text messages or social media posts, and tailor a defence to your specific case.
Please contact us at 416-365-3151 to set up a consultation to discuss your case, potential defences and the next steps you should take.
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