Sexual Assault

Pursuant to section 265(1) A person commits an assault when

1. Without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
2. He attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe upon reasonable grounds that he has, present ability to effect his purpose; or
3. While openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

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.

• Sexual assault is an assault, within any of the definitions under section 265(1), which is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated.
• The test to be applied to determine whether the requisite sexual nature exists is an objective one. In other words, would a reasonable person under the circumstances view the assault as sexual in nature.

1. The sexual assault never occurred
2. Consent
3. Mistaken belief in consent

• In certain cases, the complainant (i.e. victim) will have a motive to lie and will fabricate allegations. In these circumstances it is critical to have an experienced Toronto Criminal Lawyer on your side as he/she will know how to expose these lies.
• The law has many safeguards in place that limit a lawyer’s ability to ask questions about the complainant’s previous sexual history. That’s why it is critical to have an experienced Toronto Criminal lawyer on your side as certain applications may be required to be filed with the court to obtain permission to cross examine the complainant on certain sensitive issues.

1. Often at the heart of the issue in a sexual assault case is the issue of consent.
2. Section 273.1(1) defines consent as the voluntary agreement of the complainant to engage in the sexual activity in question.
3. NOTE consent is invalid if
   1. The agreement is expressed by the words or conduct of a person other than the complainant;
   2. The complainant is incapable of consenting to the activity;
   3. The accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
   4. The complainant expresses, by words or conduct, lack of agreement to engage in the activity; or
   5. The complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

To determine if consent was given the trier of fact will look to the parties’ words, conduct and reasonable steps taken in the circumstances.

Under Section 273.2 it is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject matter of the charge, where

1. The accused’s belief arose from the accused’s
   1. Self-induced intoxication, or
   2. Recklessness or wilful blindness; or
   3. The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

More often than not, sexual assault cases are decided based on the credibility of witnesses. That’s why it is critical to hire the right Toronto Criminal Lawyer who has the experience to cross examine the complainant(s) in these types of circumstances. Discrediting the complainant’s credibility through cross examining, the use of prior inconsistent statements and other evidence will be paramount in obtaining a favourable result.

• A complainant under the age of 16 cannot consent to sexual activity with an adult, except in a few limited circumstances. For example, if the complainant is 12 or 13 years old, then the accused must not be more than 2 years older than the complainant.  Alternatively, if the complainant is 14 or 15 years old, then the accused must be less than 5 years older otherwise the complainant is incapable of consenting.

Being charged with sexual assault is embarrassing and stressful enough. But being found guilty of sexual assault creates a whole new set of problems. It can include lengthy jail sentences and the irreparable harm that follows from being subjected to a sex offender registry.