What is ‘Sexual Assault’?
As per the Canadian Criminal Code, an ‘assault’ is the use of force against another person, directly or indirectly, without their consent. In this case, ‘Sexual Assault’ crimes are assaults which involve some nature of sexual touching or a sexual overtone. These can range from something as minimal as a mere touch of a body part (such as a kiss on the lips), up to, and including, what used to be called “rape.”
With any and all kinds of sexual assault cases, there are very severe penalties beyond the usual ones like prison or jail and probation, including: DNA orders, weapons prohibitions and registration in the National Sex Offender Registry. The severity of those punishments can have long reaching effects on a person’s life and we recognize the need to work with and around those punishments to achieve the best result for you.
For those who are not Canadian citizens it can also have immigration consequences.
Most sexual assaults are NOT those at the more severe end of the range. Showing a lack of sexual intent in the assault can lead to positive resolutions if you have been charged. Furthermore, minimizing further effect on a victim can often mitigate the sentence or plea sought by a Crown and imposed by the court.
Your Sexual Assault Charges Journey From Start to Finish
You’ve been charged with sexual assault and/or related charges. Your world has just come crashing down around you. What will happen to you?
If this is the first time you have been charged with a criminal offence, you are probably feeling lost and scared. The accusations may have been false or wrong, or perhaps the truth is somewhere in between. Regardless, you are now beginning your journey as an accused person in the criminal justice system. It won’t be easy or quick. And it will be immensely stressful.
The following is guide for that journey from your point of entry into the criminal justice system to where you will be at the end of the journey. But first, let’s begin by understanding what the basic law on sexual assault is.
What is the Law on Sexual Assault in Canada?
The offence of sexual assault is found in Criminal Code of Canada at s.271:
271 Everyone who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
Breaking this provision down we see that the Crown can proceed against you either by indictment or by way of a summary offence prosecution. If the circumstances are considered by the Crown to be particularly egregious, then the Crown will proceed by indictment and the maximum sentence would be 10 years in jail. If the Crown considers the offences to be towards the lower end of the spectrum in terms of seriousness, then the Crown may proceed summarily and the maximum sentence would be 18 months in jail. Note that if the complainant was under the age of 16, the maximum jail sentences increase and there are also minimum jail sentences below which a judge is not permitted to go.
If the Crown proceeds by indictment your matter may move up from the Ontario Court of Justice to Superior Court and the court procedures will become more complex and may take longer. You would also be facing longer potential jail sentences.
A related and even more serious offence is:
Sexual assault with a weapon, threats to a third party or causing bodily harm
272 (1) Every person commits an offence who, in committing a sexual assault,
(a) carries, uses or threatens to use a weapon or an imitation of a weapon;
(b) threatens to cause bodily harm to a person other than the complainant;
(c) causes bodily harm to the complainant;
(c.1) chokes, suffocates or strangles the complainant; or
(d) is a party to the offence with any other person.
(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable
(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of four years; and
(a.2) if the complainant is under the age of 16 years, to imprisonment for life and to a minimum punishment of imprisonment for a term of five years; and
(b) in any other case, to imprisonment for a term not exceeding fourteen years.
Note the minimum jail sentences for these offences and remember that a judge would not have the discretion to impose less jail time than these mandatory minimums.
Another very serious and related offence is:
Aggravated sexual assault
273(1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.
Aggravated sexual assault
(2) Every person who commits an aggravated sexual assault is guilty of an indictable offence and liable
(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i)in the case of a first offence, five years, and
(ii)in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(a.2) if the complainant is under the age of 16 years, to imprisonment for life and to a minimum punishment of imprisonment for a term of five years; and
(b) in any other case, to imprisonment for life.
As you can see, these more serious versions of sexual assault carry long jail sentences, including the mandatory minimum sentences (and the sentences are even longer if the complainant is under 16).
Besides the provisions in the Criminal Code, there is also the relevant caselaw that must be considered. An explanation of the caselaw would be beyond the scope of this discussion. A good criminal lawyer will be aware of the interplay between the statutory law and caselaw in your sexual assault charges case.
It Starts With Your Arrest
Your journey begins upon your arrest. When you are arrested the police should immediately inform you about your right to counsel and caution you about making any statements. You have a right to speak to your own lawyer, or if you do not have a lawyer or can’t find one, you have the right to speak to a free duty counsel lawyer. The police must help you make your call to the lawyer.
When you are being arrested you should be polite and co-operate with the police. But you should not give them any information other than identifying yourself when asked. The police may tell you that you can give your side of the story. Don’t do it. Do not make any statements, even if you think what you say may help you. Of course, you must not lie. You can simply tell the arresting officer that you will not provide any statements until you have had the opportunity to speak to a lawyer.
The Second Step: Ideally Bail or Other Release
The second step in your journey will involve you either being released from custody pending the outcome of your case, or staying in custody for the duration of the court proceedings and possibly afterwards as well.
After your arrest, you may or may not be released. You will either be released right after the arrest but with certain conditions restricting your movement and activities (for example prohibiting contact with the complainant), or you will be held for a bail hearing. For sexual assault charges, chances are you will be held for a bail hearing.
If you are successful at your bail hearing and are released “on bail,” it will be with a number of conditions restricting your movement and activities. If you are not successful at your bail hearing and are not released, you will stay in jail while your case continues to move through the criminal court. The progress of your case through the court system will take many months. As you can see, “getting bail” is extremely important. Therefore, it is advisable to get an experienced criminal lawyer to represent you at your bail hearing.
Your First Court Date
Sometime, possibly as long as a few weeks, after your arrest or release on bail you will have your first court date. If you have a lawyer and have signed a “Designation of Counsel” (a document with which the lawyer may appear on your behalf), you do not have to appear in person. Note that in some jurisdictions fingerprinting takes place at the courthouse. Regardless of where your fingerprinting is to take place, you must attend in person. Do not miss this step!
You may think that on your first court date something significant is going to happen like having to defend yourself or tell your side of the story. Actually, not much happens on the first court date and you do not get an opportunity to say or do anything about the substantive issues of your case. On your first court date usually you, or if you have a lawyer, he/she, will receive your disclosure or arrange the obtaining of disclosure, and then you or your lawyer will ask for a short adjournment. Usually (depending on the jurisdiction) this adjournment is for approximately three weeks and its purpose is to give you time to review the disclosure.
If you are planning to get a lawyer and/or need to apply for a Legal Aid certificate, you can ask for an adjournment to give you time to do that. If you have a lawyer and have signed a Designation of Counsel, your lawyer can appear in court for you for most purposes so that you don’t have to. (Having a lawyer attend court on your behalf saves you missing work and possibly using up a whole day to come to court just for a routine adjournment.)
You should be aware that adjournments in criminal court are short, measured in weeks rather than months. (By contrast in civil litigation matters, such as family court cases adjournments are often months apart.)
Reviewing Your Disclosure
Your “disclosure” contains those materials on which the Crown will rely to make the case against you. Your disclosure might contain: the police’s information regarding the investigation and arrest; statements that the officers took from you (although ideally you wouldn’t have given them any); the notes from the officers’ notebooks; witness statements; transcripts or summaries of video statements given (including yours if you gave any, which again you shouldn’t have); photographs and/or videos; and, anything else that the Crown has that it could use against you in court. You have a right to see everything that will be used against you. (The Crown cannot “ambush” you a trial with information on you that you didn’t know about before hand.)
You need to review your disclosure thoroughly and discuss it with your lawyer. Your lawyer will be able to analyze the disclosure and give you some insight into the strengths and weaknesses of your case. Your lawyer may request additional disclosure if there is more information available.
In some jurisdictions your lawyer can give you a copy of your disclosure and in some jurisdictions, for example in Belleville and all Ontario courts east of that, your lawyer is not permitted to do so. Even in those jurisdictions in which your lawyer can copy the printed disclosure for you, certain sensitive materials, may be disclosed to your lawyer but the lawyer may be only allowed to let you review them at the lawyer’s office.
Next Steps in the Journey
Once you and your lawyer have reviewed the disclosure, your lawyer will probably schedule a Crown Pre-Trial (CPT), also called an Issue Resolution Meeting (IRM). This is a type of meeting at which your lawyer will have a discussion with the Crown’s lawyer to try to reach a resolution.
If a resolution that you can live with cannot be reached, your lawyer and the Crown may screen your case for trial. Screening for trial involves working out what the issues will be at trial, the number and types of witnesses, estimated duration of the trial, etc. Then a trial date will be chosen, based on the court’s availability as well as the availability of the other parties involved including police officers, Crowns, witnesses and your lawyer. In many of the busier jurisdictions the trial date will not be for many months. For people being held in custody, the trial date is usually earlier (but rarely sooner than at least a few months away).
Usually in sexual assault cases, if a matter cannot be resolved at the CPT, a Judicial Pre-Trial (JPT) is scheduled before setting the case for trial. At a JPT your lawyer will meet again with the Crown attorney but this time there will also be a judge. This meeting takes place in the judge’s chambers or another private room (so not in open court). Your lawyer, the Crown and the judge will have an off the record discussion about the case. You do not attend this meeting. The judge conducting the JPT cannot then do the trial, if there is one. The JPT judge can, however, provide some guidance from the perspective of the bench and can sometimes guide the two sides toward a compromise. If no resolution can be reached at the JPT, then the case is prepared for trial. Issues for the trial are narrowed down so that expensive trial time doesn’t get used on issues that the two sides can agree on. After the off the record portion of the JPT, then the lawyers and judge go into the courtroom itself, get back “on the record” and state for the record what the results of the JPT were (but not what was discussed off the record). A guilty plea could take place at that time, or the matter may be set for trial, or sometimes the matter is adjourned for a continuing JPT. You can be present for this on the record part of the JPT that takes place in open court.
If as a result of either the CPT or the JPT your lawyer is able to convince the Crown to withdraw the charges, well that’s a big win. If your lawyer convinces the Crown to drop some of the charges (if you have been charged with more than one offence or multiple counts of the same offence) that’s something. If the Crown can be convinced to knock down the charge to a lesser offence to which you are willing to plead guilty, that is a good outcome, not the least because it saves you the expense, delay and stress of a trial.
Pleading Guilty to Sexual Assault Charges
If you plead guilty to your sexual assault charges, your case will probably be over sooner than if you take it to trial. But, you absolutely should not plead guilty just to “get it over with” quickly. You should only plead guilty if you are prepared to admit that the facts as laid out in the disclosure are substantially correct. If you plead guilty, the facts from your disclosure will be read out loud in court and you will have to agree, on the record, that those facts are substantially correct.
Before you plead guilty, your lawyer should go over what’s called the pre-plea comprehension inquiry, to make sure that you know what you are doing when you plead guilty.
Your lawyer should ensure that you understand that by pleading guilty you are giving up your right to a trial and that you understand what that means.
You should understand that if you are pleading guilty you are admitting that the facts in the disclosure are substantially correct and therefore, the Crown does not have to prove those facts. (You make this admission publicly in open court.)
You must be pleading guilty voluntarily, for example nobody has paid you or coerced you into pleading guilty. You will need to realize that you cannot change your mind to plead “not guilty” later on.
You should understand the consequences of your guilty plea. The consequences will include a criminal record and a sentence that may include jail and likely probation after your release. If the complainant was under the age of 16, or your guilty plea was to one of the more serious types of sexual assaults like sexual assault with a weapon or aggravated sexual assault, you are definitely going to jail. With this kind of criminal record, you will not be able either to work or volunteer in the vulnerable sector, for example you will not be able to work in a nursing home or volunteer to help with your children’s organized activities. You also will not be able to enter or transit through the U.S.
You will be required to register with and report to the provincial and federal sex offender databases (which are explained below).
And finally, you must understand that while the sentencing judge will listen to the Crown and to your lawyer, but will make the final decision. If the Crown and your lawyer are presenting a “joint submission” to the judge (sometimes referred to as a plea bargain) the judge is likely to follow their suggestions if the suggestions are reasonable, but the judge is not absolutely required to follow them.
You Will Have to Register in & Report to Sexual Offender Registries
If you are convicted of sexual assault either as a result of pleading guilt or losing at trial, you will have to register in the national sexual offender registry and comply with the registry’s requirements. The law that governs this registration is the Sex Offender Information Registration Act (SOIRA). The database in which the information is kept is called the National Sex Offender Registry but is usually referred to as SOIRA. SOIRA is administered by the RCMP. Anywhere in the country, police can access this database and query for a list of all sex offenders within a particular geographic area. If you are a convicted sex offender registered in SOIRA who lives, works, volunteers, goes to school or is even just temporarily in that area, you will be identified. SOIRA will the police access to your personal information including recent photos and descriptions of your identifying marks and features.
If you are convicted in Ontario you will also have to register in the Ontario Sex Offender Registry (OSOR) which was created as a result of the abduction, sexual assault and murder of 11-year-old Christopher Stephenson by a convicted sex offender in 1988. This registry is usually referred to as “Christopher’s Law.” The rules and requirements for Christopher’s Law are similar to those for SOIRA.
If You Decide to Take Your Sexual Assault Charges to Trial
If instead of pleading guilty to the sexual assault charge or charges or achieving some other resolution, you decide to go to trial, then there will be a much longer waiting period before your case ends. Trial court availabilities will vary by jurisdiction. Other factors, including the availability of the parties and the estimated length of the trial, also may affect the scheduling of your trial. Your trial could be a month or a year away. Most sexual assault trials will be scheduled many months into the future. If you are in custody, it is likely that you will get an earlier date for your trial (but earlier is a relative term). Under the Canadian Charter of Rights and Freedoms and established caselaw, you have the right to a trial within a reasonable time. If your trial gets delayed too long and the delays are the fault of the court system or Crown or police, (so not your fault), and are not justifiable, and you have been prejudiced by this delay, you may be able to make an application (sometimes called an “11(b) Application”) to have the charges “stayed.” A stay would be like a win for you. To make such an application, it is recommended that you retain a lawyer as the analysis into what constitutes a delay that “counts” in such matters, is complicated and technical.
If you go to trial and finally get to your first day of trial, you will appear and enter your plea of “not guilty.” Some trials do not last more than a day but some trials can be much longer. Basically, what happens at a trial is that the Crown has to prove the facts that it brings as evidence of your guilt of the sexual assault offence(s). You have a constitutional right to be presumed innocent. Therefore, it is up to the Crown to prove beyond a reasonable doubt that you are guilty. It is not up to you to prove your innocence but you can raise certain defences which your lawyer will have discussed with you.
At the trial, the Crown presents the case against you first. The evidence that the Crown will use will likely include the testimony of the witnesses called by the Crown to testify. In a sexual assault case, the complainant will be one of the witnesses for the Crown. The Crown questions (examines) its witnesses and then the defence gets to question (cross-examine) the Crown’s witnesses. Cross-examination of a witness is in a sexual assault matter requires a skilled defence lawyer.
After the Crown has presented all its witnesses and these witnesses have been cross-examined by the lawyer for the defence, it is the defence’s turn. If the defence thinks that the Crown did not manage to prove guilt beyond a reasonable doubt, defence may choose not to call its own witnesses. This decision is carefully weighed by the defence lawyer usually cannot be made until after the Crown “closes its case,” that is to say, has presented all its witnesses and evidence. So, whether or not you will testify in your own defence is a question that often cannot be answered until that point in the trial. You may feel strongly that you want to tell your side of the story to “set the record straight,” especially after hearing the testimony of the Crown’s witnesses, but remember that if you get on the stand to do that, the Crown gets to cross-examine you – and that could be very damaging to your case.
After the all the witnesses for both sides have testified and all the evidence has been entered, the Crown and defence lawyers each get the opportunity to make their closing submission. These submissions are their arguments based on the law and the evidence (including witness testimony) presented during your trial. The judge (or jury if there is one) makes the decision as to guilt. The judge (or jury) may decide that day, or the case may be adjourned to for the judgment the be delivered at a later date.
If you win your sexual assault trial, then there will be no sentence and you will be free to go. You can begin to rebuild your life.
If you lose, the consequences may be jail followed by probation and SOIRA. If you are convicted of one of the more serious forms of sexual assault such as sexual assault with a weapon, aggravated sexual assault or sexual assault involving a person under the age of 16, you will for certain be going to jail. How much jail will depend on the particular facts in your trial. But remember, that even if your facts aren’t bad enough for the judge to feel that your case warrants the maximum penalty, if you are found guilty of one of these sexual assault cases with minimum jail sentences, the judge is required to impose at the very least, that minimum period of imprisonment. If you lose, you may consider appealing. If so, you will need to consult with a lawyer who can advise you as to the strength of your appeal case.
The End of the Journey
No matter how your sexual assault charges journey through the criminal justice system ends, the journey will be stressful. You can alleviate some of that stress by being informed and by getting advice from a knowledgeable criminal. The team of criminal lawyers at the law firm of Aitken Robertson, collectively have a wealth of experience in this and other areas of criminal of law and offer a free half-hour consultation, either through this website or by calling the toll-free number: 1-800-668-1657.