Sexual Assault Lawyer Toronto

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.

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.

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:

1. 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.
2. 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.
3. 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.

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).

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,

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.

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:

1. 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.
2. 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.

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.

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.

Engaging with the police without legal guidance can be risky. It is always in your best interest to first seek advice from a seasoned lawyer who understands the complexities of the law.

In Canada, you have the right to remain silent, a right protected by the Charter of Rights and Freedoms. While you may be required to provide your name, address, and date of birth if arrested, you are not obligated to provide any further information without legal counsel.

Anything you say to the police, whether "on the record" or "off the record," will be used against you. Therefore, retaining a strong team of sexual assault defense lawyer should be the first step if you have been arrested or even just accused of a sexual assault crime. Delaying a meeting with a lawyer is a common mistake that gives the police and the Crown more time to build their case against you.

At Bytensky Shikhman, our team of sexual assault defense lawyers understands the strategies that the Crown will use. Our lawyers will begin working on your case immediately, building a strong defense through meticulous preparation and critical evaluation of every detail.