Sexual Assault Lawyer in Canada

What Sexual Assault covers in Canadian criminal law

What the Crown must prove

The Crown carries the burden of proving every element beyond a reasonable doubt. A reasonable doubt on any one of them means an acquittal.

• The accused intentionally touched the complainant
• The touching occurred in circumstances of a sexual nature, viewed objectively
• The complainant did not subjectively consent to the sexual activity in question
• The accused knew of, or was wilfully blind or reckless as to, the absence of consent
• Identity of the accused and the date and jurisdiction of the alleged offence

Penalties and consequences on conviction

• Significant custodial exposure, particularly where the Crown proceeds by indictment
• Mandatory registration under the Sex Offender Information Registration Act in most cases
• A mandatory DNA order
• Prohibition orders under section 161 where the complainant was under 16
• Serious immigration and travel consequences and lasting employment and licensing barriers

Common defences

• The complainant consented to the sexual activity in question
• Honest but mistaken belief in communicated consent, where there is an air of reality and reasonable steps were taken
• The touching was not sexual in nature when viewed objectively
• Reliability and credibility challenges arising from inconsistent statements or the surrounding circumstances
• Applications under section 276 or section 278.92 that shape what evidence the jury or judge may consider
• Charter applications, including unreasonable delay under section 11(b) and disclosure failures

Sexual assault lawyer: frequently asked questions

Is silence the same as consent in Canadian law?

No. Section 273.1 requires voluntary agreement to the sexual activity in question, and Canadian courts have held that consent must be communicated. Passivity, silence or the absence of resistance is not consent, and consent cannot be given in advance or by a person who is incapable of consenting.

Will my name be published if I am charged with sexual assault?

Court proceedings are presumptively open, but a publication ban protecting the complainant's identity is routinely imposed under section 486.4. That ban protects the complainant, not the accused. Counsel can advise on the limited circumstances in which further restrictions may be sought.

What is a section 276 application?

It is the pre-trial process that determines whether evidence of a complainant's other sexual activity can be admitted. The evidence is presumptively inadmissible, and the defence must satisfy the judge that it is relevant to a specific issue and that its probative value is not outweighed by the risk of prejudice.