What is sexual assault?

A sexual assault is an assault that is sexual in nature and which is committed in such a way that the sexual integrity of the victim is violated. In its simplest and most basic form, sexual assault is any unwanted touching of a sexual nature that violates another person’s sexual integrity.

To prove that a sexual assault occurred, the Crown Attorney must prove the following elements of the offence beyond a reasonable doubt:

  1. You made physical contact with a person;
  2. You did so in a sexual manner;
  3. You made physical contact with that person without their consent;
  4. You intended to make physical contact with that person;
  5. You were aware of or wilfully blind or reckless to the fact that the person did not consent.

In criminal law, the first three points in the bullet would be the actus reus, or “bad act”. The other two points are the mens rea or “guilty mind”. For the Crown to prove that you are guilty of sexual assault, they must show beyond a reasonable doubt that you both did something bad, and did so with a guilty mind.

How can our firm assist you?

The lawyers at Lakin Afolabi Law are experts in defending sexual assault cases. We do not believe that one size fits all. Our system of defence is tailored for you – we listen to you, strategize with you, and then defend you to get you the best possible results. When you work with Lakin Afolabi Law, you’re with us every step of the way from discussing your goals with the charges to determining our trial strategy. We’re a personable, multilingual, experienced, and professional firm.

What types of offences fall under the category of sexual assault?

  1. Sexual Assault
    1. Sexual assault is defined in section 271 of the Criminal Code. This includes sexual assault where the victim is 16 years and above or where the victim is under the age of 16. Where the victim is under 16 years of age, please refer to our information on Sexual Interference.
  2. Sexual Assault with a Weapon
    1. This offence is defined in section 272 of the Criminal Code. It covers sexual assault in situations where the accused uses a weapon, threatens to cause bodily harm to a third party or causes bodily harm to the complainant. Bodily harm includes both physical and psychological harms, and also encompasses the transmission of sexually transmitted infections (STIs/STDs).
  3. Aggravated Sexual Assault
    1. Aggravated sexual assault is one the most serious sexual assault charge. It is defined in section 273 of the Criminal Code. It includes the elements of sexual assault and an additional element of wounding, maiming, disfiguring, or endangering the life of the complainant.

What do I do if I am under investigation or charged with sexual assault?

There are two things that you should do when you are charged with sexual assault:

  1. Stay silent.
    1. Section 7 of the Charter of Rights and Freedoms guarantees that you have a right to silence. The police can use any technique to extract a confession from you including lying to you about the strength of their evidence, playing “good cop – bad cop”, and intimidating you about the consequences of not cooperating.
  2. Call a lawyer.
    1. Defending a sexual assault charge is hard work. It requires knowing what defences to use, what pre-trial applications are required and carefully cross-examining witnesses. An experienced criminal lawyer will know how to navigate these challenges.

Will I get bail on a sexual assault charge?

Being released from jail while awaiting trial for a sexual assault case requires that a Justice of the Peace be satisfied that:

  1. You are not a flight risk;
  2. You have a low likelihood of re-offending, and are not a danger to the Complainant or the public;
  3. The public will have confidence in the justice system.

If you are granted bail, you will likely receive conditions that you must follow. These conditions may include but are not limited to:

  1. Having no contact with the complainant;
  2. Restrictions on going near the complainant’s home, workplace, and other locations they frequent.
  3. Attending all court appearances as necessary;
  4. Non-attendance at schools, parks, playgrounds or community centers.

What are the penalties for sexual assault?

The most serious penalty for sexual assault is custody (imprisonment). For sexual assault convictions, this can be up to fourteen years if the Crown elects to proceed by indictment. If the Crown proceeds summarily, the highest penalty can include 2 years less a day of imprisonment.

If you are found guilty or choose to enter a plea of guilty, your sentence depends on a number of factors including but not limited to:

  1. The type of offense you were charged with:
    1. Sexual assault under section 271 can be prosecuted either as a summary offence or an indictable offence.
      • If the Crown prosecutes summarily, the maximum sentence is 2 years less a day.
      • If the Crown proceeded by indictment, the maximum sentence is 10 years for victims over the age of 16.
      • If the victim is under the age of 16, the offence carries a maximum punishment of 14 years imprisonment.
  2. If a firearm was used during the commission of the offence.
  3. If you were previously convicted for a crime.
  4. Any additional mitigating or aggravating features that are relevant upon sentencing.

In addition to possible jail time, there are other consequences to being found guilty of sexual assault such as:

  1. Mandatory registration in the national sex offender registry.
  2. Mandatory registration in the Ontario sex offender registry.
  3. Potential deportation (if you are not a Canadian citizen).

What are the defences to sexual assault?

There are a number of defences that a lawyer can raise to help get an acquittal from a sexual assault charge. These include:

  1. Denying the elements of the offence.
    1. The Crown Attorney must prove beyond a reasonable doubt that they have met all of the elements of the offence.
  2. Consent
  3. Honest but mistaken belief in consent
    1. If the accused can show that he or she honestly believed that there was consent from the complainant and was reckless or willfully bind towards consent , a defence of honest but mistaken belief in consent can be raised.
  4. Charter violations
    1. If the police obtained evidence in ways that violated your Charter rights (the right to silence, the right to an attorney, the right to be free from unreasonable search or seizure), evidence may be excluded from your trial. Additionally, if the Crown Attorney has delayed your right to a trial within a reasonable time, your charges may be stayed.

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