Sexual Assault Charges in Ontario

What Is Sexual Assault Under Canadian Law?

Sexual assault is an assault committed in circumstances that give the contact a sexual nature. The court considers the contact itself and the surrounding circumstances when determining whether the alleged conduct was sexual.

Sexual assault allegations may involve:

• Non-consensual sexual touching;
• Sexual activity alleged to have occurred without consent;
• An allegation that consent was withdrawn;
• An allegation involving incapacity to consent;
• An allegation involving the use or threat of force;
• A dispute about what was communicated between the people involved; or
• Historical allegations reported months or years after the alleged incident.

Sexual assault cases are highly fact-specific. The relationship between the people involved, their communications, the events leading to the alleged contact and their conduct afterwards may all form part of the evidence.

Types of Sexual Assault Charges

The Criminal Code establishes different levels of sexual assault.

Sexual Assault

Sexual assault under section 271 may involve sexual touching alleged to have occurred without the complainant’s voluntary agreement.

The allegation does not have to involve intercourse, physical injury or violence. The court examines the nature of the contact and the circumstances in which it allegedly occurred.

Sexual Assault With a Weapon, Threats or Bodily Harm

Section 272 addresses allegations involving additional circumstances, which may include:

• Carrying, using or threatening to use a weapon or imitation weapon;
• Threatening to cause bodily harm to another person;
• Causing bodily harm to the complainant;
• Choking, suffocating or strangling the complainant; or
• Participating in the offence with another person.

These allegations may result in more serious potential consequences.

Aggravated Sexual Assault

Section 273 applies where the alleged sexual assault wounded, maimed or disfigured the complainant or endangered the complainant’s life.

Aggravated sexual assault is among the most serious offences in the Criminal Code.

Historical Sexual Assault Allegations

A sexual assault allegation may be reported long after the alleged event. The passage of time does not necessarily prevent a charge from being laid.

Historical cases may raise issues involving memory, missing records, unavailable witnesses and the ability to reconstruct the surrounding circumstances. The applicable law may also depend on when the alleged conduct occurred.

What Is Consent?

Under the Criminal Code, consent means the voluntary agreement of the complainant to engage in the sexual activity in question.

Consent must relate to the particular sexual activity and must exist at the time the activity occurs. A person may agree to one form of sexual activity without agreeing to another, and consent may be withdrawn.

The law provides that consent is not obtained in circumstances including where:

• The agreement is expressed by someone other than the complainant;
• The complainant is incapable of consenting;
• The accused induces the activity through an abuse of a position of trust, power or authority;
• The complainant expresses a lack of agreement; or
• The complainant initially agrees but later expresses a lack of agreement to continue.

Consent cannot be inferred only from silence, passivity or previous sexual activity.

Capacity to Consent

A person must have the capacity to understand the nature of the sexual activity and voluntarily decide whether to participate.

Capacity may become an issue where the evidence involves:

• Alcohol;
• Drugs;
• Unconsciousness;
• Sleep;
• A medical condition;
• Cognitive impairment; or
• Another circumstance affecting the person’s ability to choose.

Intoxication does not automatically establish either capacity or incapacity. The degree of impairment and the evidence concerning the complainant’s ability to understand and voluntarily agree must be examined.

A person who is unconscious cannot consent to sexual activity.

What Must the Crown Prove?

The Crown must prove every essential element of the alleged offence beyond a reasonable doubt.

Depending on the charge, the Crown may need to establish:

• The identity of the accused;
• That the alleged physical contact occurred;
• That the contact was voluntary or intentional on the part of the accused;
• That the contact was sexual in nature;
• That the complainant did not consent to the sexual activity in question;
• That the accused knew the complainant was not consenting, was reckless or wilfully blind regarding consent, or failed to take reasonable steps where required by law;
• That a weapon, threat or bodily harm was involved, where alleged; and
• That the evidence supports the specific level of sexual assault charged.

The Crown carries the burden of proof throughout the case. The accused does not have to prove innocence.

Evidence in a Sexual Assault Case

Evidence may include:

• Statements from the complainant;
• Statements from the accused;
• Statements from friends, relatives or other witnesses;
• Police body-worn camera recordings;
• Security, cellphone or transportation video;
• Text messages, emails and social-media communications;
• Dating-application records;
• Photographs;
• Medical or forensic evidence;
• Location and transportation records;
• 911 recordings;
• Records of communications before and after the alleged event; and
• Statements allegedly made by the accused.

Some sexual assault cases depend primarily on the testimony of the complainant and accused. There is no general legal requirement that a complainant’s testimony be independently corroborated.

The court must nevertheless determine whether the Crown has proved the charge beyond a reasonable doubt. Reliability, credibility, internal consistency and consistency with other evidence may therefore be important.

Electronic Communications and Other Records

Text messages, emails, social-media communications and dating-application records may provide information about:

• The relationship between the parties;
• Arrangements made before the encounter;
• What occurred before or after the alleged incident;
• The timing and location of events;
• Statements made by either person; and
• Whether an account is consistent with other evidence.

Anyone facing an allegation should preserve potentially relevant communications and should not delete, alter or selectively edit electronic records.

Special legal rules may apply before certain records can be introduced at trial. The fact that the defence possesses a message, photograph or record does not necessarily mean that it can automatically be used in court.

Evidence of Other Sexual Activity

Sections 276 and related provisions of the Criminal Code restrict the use of evidence concerning a complainant’s other sexual activity.

Such evidence cannot be used to support the prohibited reasoning that a complainant was more likely to have consented or is less worthy of belief because of previous sexual activity.

If the defence seeks to use evidence covered by these provisions for another legally permitted purpose, a formal application and court ruling may be required before the evidence can be introduced.

These rules may also apply to previous sexual activity between the complainant and the accused.

Applications Concerning Private Records

Special procedures apply to certain private records relating to a complainant or witness. These may include counselling, therapeutic, medical or other records in which there is a reasonable expectation of privacy.

The defence does not automatically receive access to such records. A court application may be required, and the judge must consider statutory requirements, privacy interests and the accused’s right to make full answer and defence.

The procedure depends on who possesses the records and how the defence seeks to use them.

Possible Defences to a Sexual Assault Charge

The available defence depends on the allegations, evidence and applicable law. Possible issues may include the following.

The Alleged Sexual Contact Did Not Occur

The accused may deny that the alleged activity occurred. The defence may examine whether the allegation is reliable, internally consistent and supported or contradicted by other evidence.

Consent

The evidence may raise a reasonable doubt about whether the complainant voluntarily agreed to the sexual activity in question.

Consent is determined from the complainant’s subjective state of mind as communicated through words or conduct. Previous relationships or sexual activity do not provide continuing consent to later activity.

Honest but Mistaken Belief in Communicated Consent

In limited circumstances, the evidence may raise the defence of an honest but mistaken belief that the complainant communicated consent.

The issue is not simply whether the accused assumed that the complainant consented. The court examines what words or conduct communicated agreement and whether the accused took reasonable steps to determine that the complainant was consenting.

This defence is not available in circumstances excluded by the Criminal Code, including where the belief arose from self-induced intoxication, recklessness or wilful blindness.

Identity

The Crown must prove that the accused was the person who committed the alleged offence. Identification evidence may require careful examination where the parties were strangers or the circumstances affected the witness’s ability to observe or remember.

Unreliable or Inconsistent Evidence

The defence may examine inconsistencies within a witness’s evidence and differences between that evidence and other records.

Not every difference is significant. The court considers whether an inconsistency concerns an important part of the allegation and whether it affects the reliability or credibility of the evidence.

Motive to Fabricate

In some cases, the surrounding evidence may raise an issue concerning whether a witness had a reason to make a false allegation. A suggested motive must be grounded in evidence rather than speculation.

The existence of conflict, separation or another dispute does not by itself establish that an allegation is false.

Charter Violations

Police must respect the rights protected by the Canadian Charter of Rights and Freedoms. Depending on the circumstances, issues may arise concerning detention, arrest, search, access to counsel, seizure of electronic devices or statements obtained by police.

Not every defence applies to every case. A defence strategy can only be determined after reviewing the disclosure and individual circumstances.

What Happens After a Sexual Assault Charge?

Following an investigation, police may arrest the accused or ask the accused to attend a police station. The accused may be released with conditions or held for a bail hearing.

Release conditions may prohibit the accused from:

• Communicating with the complainant;
• Attending the complainant’s home, school or workplace;
• Possessing weapons;
• Using specified communication platforms; or
• Contacting certain witnesses.

The case will normally proceed through several stages:

• Arrest and release or bail;
• First court appearance;
• Receipt and review of Crown disclosure;
• Crown pre-trial discussions;
• Applications concerning records or admissibility of evidence;
• Judicial pre-trial;
• Resolution discussions; and
• Trial, if the matter is not otherwise resolved.

The accused must comply with every release condition unless it is formally changed.

Should You Speak With Police?

A person who is arrested or detained has the right to remain silent and the right to retain and instruct counsel without delay.

Police may attempt to interview a suspect before or after an arrest. Statements made to police may become evidence in the criminal case.

A person facing a sexual assault allegation should obtain legal advice before deciding whether to provide a statement. Attempting to explain the situation without understanding the evidence or legal consequences may affect the defence.

Can the Complainant Withdraw the Charge?

The complainant does not normally control whether a sexual assault prosecution continues. Once a charge has been laid, the Crown prosecutor determines how the case proceeds.

A complainant may provide further information or express a desire not to participate. However, the Crown will assess the admissible evidence, the reasonable prospect of conviction and the public interest.

The accused should not contact the complainant to discuss withdrawing or changing the allegation, particularly when a no-contact condition is in effect.

Possible Consequences of a Sexual Assault Conviction

The consequences depend on the offence, the facts, the accused’s criminal record and the sentence imposed.

Possible consequences may include:

• A criminal record;
• Probation;
• Imprisonment;
• Restrictions on communication or attendance;
• A weapons prohibition;
• A DNA order;
• Obligations under sex-offender information legislation, where applicable;
• Employment or professional consequences;
• Restrictions affecting travel; and
• Immigration consequences for a person who is not a Canadian citizen.

Because the consequences can be significant and the sentencing rules depend on the precise charge and circumstances, individualized legal advice is important.

Sexual Assault Charges and Immigration Status

A sexual assault charge or conviction may create serious immigration consequences for a permanent resident, foreign national or other person who is not a Canadian citizen.

The effect may depend on the offence, the sentence and the person’s immigration status. Coordinated advice from criminal and immigration counsel should be considered before decisions are made concerning a plea or resolution.

Publication Bans and Privacy

A court may make a publication-ban order protecting information that could identify the complainant or certain witnesses.

A publication ban does not necessarily prevent the accused from preparing a defence or discussing the case privately with counsel. It restricts the publication, broadcasting or transmission of protected identifying information.

Court orders and applicable restrictions should be carefully followed. Information about the case should not be posted publicly or discussed on social media.

Why Experience With Police Investigations Matters

Before becoming a criminal defence lawyer, Jake Shen served as a Toronto police officer. This experience provides practical insight into how police receive complaints, interview witnesses, collect electronic and physical evidence and prepare criminal cases.

As defence counsel, Jake reviews the investigation from the perspective of the accused and examines whether the evidence supports the allegation, whether investigative steps were properly completed and whether the accused’s Charter rights were respected.

Speak With a Toronto Criminal Defence Lawyer

If you have been charged with sexual assault in Toronto, Markham or elsewhere in Ontario, obtaining legal advice early may help you understand the allegation, release conditions and court process.

Contact Jake Shen to discuss the charge, the evidence and the next steps in the criminal court process.

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The information on this page is general information and is not individualized legal advice. Reading this page or submitting a contact form does not by itself create a lawyer-client relationship.