Sexual Assault Charges in Ontario
A Tough New Landscape
Crimes of sexual violence have received enormous attention over the last decade. Powerful new movements like #metoo and #timesup have shone a spotlight on a culture of misogyny, harassment and sexual abuse in the upper ranks of American business and entertainment.
In Canada, critics of the justice system have capitalized on the momentum created by these movements to call for a reform in the way sex crimes are investigated and prosecuted. With good reason, they have demanded that victims of sexual violence be taken seriously by the police, and that the courts do more to ensure that those complaining of sexual violence are treated with fairness and respect.
Some have gone farther. With the surge of momentum in victim’s rights, many have adopted new mantras like #ibelieveher, appearing, ironically, to call for the death of the presumption of innocence in the name of a greater justice.
Parliament and the courts have been listening. In recent years, the Supreme Court of Canada and Ontario’s Court of Appeal have passed a number of hard-hitting judgments that aim directly at the “old style” of doing business. The result is a judiciary that is more protective of sexual assault complainants' digital communications, sexual history, medical records and integrity during questioning by counsel.
In Ottawa, the Liberal Party has been working behind the scenes to send a clear message that it is watching Canada's judges. At the same time, it has passed major new legislation overhauling the Criminal Code and ushering in a wave of transformational changes in sex assault prosecutions.
The government's agenda is clear: to give complainants real standing in sexual assault cases. Under Canada’s new laws, victims now have the right to hire a lawyer to argue for the exclusion of defence evidence. What is more, the defence is now obligated to reveal their litigation strategy in advance of a sex assault trial. Both developments are unprecedented in Canadian legal history; and both are being bitterly fought by defence lawyers across the country.
Defending Sexual Assault Charges
The Outlook Today
For Canadians facing sexual assault charges, the question may be asked: what is the practical effect of the cultural, legal, and attitudinal changes that have occurred in the sphere of sexual assault cases over last decade? The answer is simple.
Today, sexual assault charges are more common and more difficult to defend than ever before.
Experienced sex assault lawyers like Shayan Shaffie note a significant uptick in the sheer number of sexual assault charges being laid by Ontario police. In many instances, these charges are supported by unsworn evidence: a new by-product of the age of emphasis on victim’s rights.
Inside courts of law, Crown prosecutors are now bound by internal policy prosecute all sexual offences “vigorously”. Further, Crown Attorneys are now prohibited from withdrawing or otherwise reducing sexual assault charges except in accordance with a strict approval process – rarely given.
Behind the dais, the enormous pressure on judges to uphold the presumption of innocence while protecting complainants against “rape myths” and unfair litigation strategies is palpable. More than ever, judges must recognize that their decisions may be scrutinized and even criticized by lawyers and justice critical alike. No sexual assault defence lawyer envies their position.
What to Do if You’ve been Charged with Sexual Assault in Ontario
Despite the sea-change in Canada’s sexual assault laws, it is still possible to mount an effective, compelling defence against allegations of sexual violence. The key to success is early partnership with an experienced sexual assault lawyer, coupled with a carefully derived litigation strategy.
If you are facing an allegation of sexual assault, it is recommended that you hire a sexual assault lawyer as soon after the complaint as possible. No two sexual assault allegations is alike. Accordingly, generic legal advice must often give way to more dynamic and detail-oriented responses tailored to the circumstances of the complaint.
A sexual assault lawyer is also in the best position to help you prepare, at a very early stage, for eventual litigation. This often involves securing and, in some cases, generating evidence while it is still fresh and available. The sexual assault lawyer can also advise you concerning common errors made by individuals still dealing with complaints in a private context.
Your Toronto Sexual Assault Lawyer
Shayan Shaffie has an exceptional track record defending crimes of sexual violence. He prides himself on garnering a reputation for staunch but professional advocacy. His highly effective approach to sexual assault allegations does not rely on outmoded stereotypes or “victim blaming” – strategies that are, in the 21st century, officially counterproductive. Instead, Shayan Shaffie bases his litigation strategy on a comprehensive understanding of the case, detail-oriented preparation, and a mastery of the rapidly-evolving law of sexual violence in Canada.
The Law of Sexual Assault
What is a sexual assault?
In Canada, a sexual assault is any form of unwanted touching of a sexual nature. This includes a broad range of conduct, from groping to rape.
What are the legal elements of sexual assault?
Here we are concerned with sexual assault in its simplest form, under s.271 of the Criminal Code. This is the most commonly charged form of sexual violence in Ontario.
To secure a conviction for sexual assault, the Crown must prove the following elements beyond a reasonable doubt:
You intentionally applied force to the complainant.
The complainant did not consent to the force.
You knew they were not consenting.
The touching was of a sexual nature.
If there is a reasonable doubt in respect of any of these elements, the judge or jury who is trying your case is required by law to acquit you. However, the law of sexual assault is deceptively complex, and each of these elements has been the subject of significant litigation.
Below, we examine the elements in more detail.
1. The Intentional Use of Force
The force required to secure a conviction for sexual assault need not be violent. It may be a gentle touch, such as rubbing or groping, and includes indirect contact – for example, through the use of a stick or other instrument. The application of force, however, must be intentional. It cannot be the result of an accident or an otherwise involuntary act.
2. The Absence of Consent
The second element in sexual assault prosecutions relates to consent.
Here the question concerns the complainant’s state of mind only. If the judge or jury believes that the complainant was not consent in his or her own mind to the force in question, the issue is settled.
Consent must be voluntary. It cannot be the result of threats, coercion, fraud, or the abuse of a position of trust or authority by the accused toward the complainant. In other words, it is not a defence that the complainant “consented”, even if actual words of consent were used, if the consent was a result of these or other exploitative circumstances.
Again, to decide this element of the crime the judge or jury will look at the totality of the evidence in relation to the complainant’s state of mind only. If the judge or jury believes that the complainant was not consenting to the force or activity in question, they will move on to the next element of the analysis.
3. Knowledge that the Complainant was not Consenting
In the sexual assault context, knowledge of the absence of consent can take on several forms. At its simplest, knowledge can mean a basic awareness that the complainant was not consenting because he or she said so.
Knowledge, however, can also mean that the defendant was reckless or wilfully blind concerning consent. These concepts are closely linked, and essentially refer to situations where the accused knows there is a risk that the complainant is not consenting, but chooses to proceed with the sexual activity without making any further inquiries.
It is a full defence in sexual assault prosecutions that an accused person honestly but mistakenly believed the complainant was consenting. However, in Canada consent must be communicated either in words or conduct. A person charged with sexual assault cannot rely on silence, passivity, or ambiguous conduct as a basis for an honest but mistaken belief in consent.
In fact, according to the Supreme Court of Canada, there is an obligation on the person engaging in the sexual conduct to take reasonable steps in the circumstances to ensure that the complainant is consenting. See s.273.2 of the Criminal Code, and the Supreme Court of Canada's decision in R v. Barton, 2019 SCC 33 for more information.
Furthermore, it is not a defence if the complainant was intoxicated to the point of being unable to freely choose to consent.
4. The Force is of a "Sexual" Nature
In some cases the nature of the alleged touching will be in issue. “Sexual” touching refers to touching that violates the sexual integrity of the complainant. The question is whether the sexual nature of the touching would be apparent to a casual observer in all the circumstances.
The part of the body touched, the situation in which it occurred, the relationship between the parties, the words or gestures accompanying the act as well as all other relevant circumstances will be considered by the judge or jury.
About the Sex Offender Information Registration Act, or "SOIRA"
One of the major negative consequences of being found guilty of a sexual offence is registration in the Sex Offenders Information Registry Act. Registration is mandatory, invasive, and can last for up to the lifetime of the convicted offender.
What is SOIRA?
The Sex Offender Information Registration Act, or SOIRA, was created to help law enforcement agencies investigate and prevent crimes of sexual violence. It does this by requiring individuals convicted of certain sexual offences to report periodically to a SOIRA registration centre (usually a police bureau), and to supply information on an ongoing basis for the duration of the SOIRA order.
This information is accessible by law enforcement agencies across the country, but is not typically shared with the public.
What information must I supply to SOIRA?
The information required for compliance with SOIRA includes, but is not limited to: your address, places of employment or volunteerism, the locations of the school(s) you attend, physical characteristics such height, weight, race, gender and identifiers like tattoos or birthmarks, and the make and model of any motor vehicles you own. For a complete list of required information, see s.5 of the Sex Offender Information Registry Act.
How Often do I have to Report to SOIRA?
Individuals bound by a SOIRA order must report within 15 days of being sentenced or released from custody. Further reporting is typically once yearly thereafter.
Supplemental reporting requirements may be triggered by changes in life circumstances: for example, a change of name, or the issuance of a new travel document or driver’s license.
Further, individuals bound by a SOIRA order must report to a registration centre before and after leaving the country.
Talk to an experienced sex assault lawyer if you have question about your reporting requirements.
Can I obtain a copy of my SOIRA file?
Yes. The registration centre is required to furnish you with a copy of the information that has been compiled in your dossier on request.
What types of offences lead to a SOIRA order?
Mandatory SOIRA Orders
SOIRA orders are mandatory if a person has been found guilty and is being sentenced in respect of certain class of “designated offences”. These are, by and large, offences of a sexual nature, and encompass allegations both minor and serious. The severity of the facts supporting the charge does not matter: what matters is whether the offence is “designated”.
Designated offences for mandatory SOIRA orders include, but are not limited to, sexual assault, human trafficking, child luring, and sexual exploitation. For a full list, see s.490.011 of the Criminal Code and the definition of “designated offence”.
Crown-Application SOIRA Orders
Sometimes a SOIRA order can be issued in respect of an offence that is not, on its face, of a sexual nature. In these circumstances, the SOIRA order becomes mandatory if the prosecutor can prove that the offence was committed “with the intent” to commit a certain class of sexual offence, and if the prosecutor applies for the order. For example, if an individual has been found guilty of voyeurism, and the prosecutor is able to satisfy the court that the offence was committed with the intent to commit a sexual assault, and the prosecutor applies for the SOIRA order, the SOIRA order must then issue.
Because of the additional evidentiary hurdles required of the Crown, these types of non-mandatory SOIRA orders are far less common than the mandatory type explained above.
How long does a SOIRA order last?
The duration of a SOIRA order depends on number of factors:
If an individual has been found guilty of an offence punishable by no more than five years, or the Crown has proceeded by summary conviction proceedings, the SOIRA order will be for 10 years.
If an individual has been found guilty of an offence punishable by 10 or 14 years (i.e. the Crown has proceeded by indictment), the SOIRA order will be for 20 years.
If the individual has been found guilty of an offence punishable by life imprisonment, the SOIRA order will be for life.
If the individual has been found guilty if more than one “designated offence” – regardless of how minor – the SOIRA order will also be for life.
In Ontario, careful attention should be paid to the reporting requirements under “Christopher’s Law”, which differ from the above. Click here for more.
Can I apply to terminate a SOIRA order?
Yes. If you are bound by a SOIRA order, an application can be made after a prescribed window of time to terminate the order. The court can then terminate the order if it is satisfied that the continued impact on the liberty and privacy interests of the person bound by the order is grossly disproportionate to the public interest in requiring further compliance with SOIRA.
About Section 161 Prohibition Orders
Canadians convicted of a sexual offence in respect of a complainant under the age of 16 face the prospect of being bound by a s.161 order. These orders are in addition to the probation, SOIRA, weapons and/or DNA orders which a court may – and in some cases must – make.
What is a s.161 Order?
Section 161 orders create terms and conditions which the person named in the order must follow. The exact terms of the order will vary from case to case. Standard terms include:
A prohibition against attending any public park or swimming area where persons under the age of 16 years are present or can reasonable be expected to be present;
A prohibition from attending within a certain distance of the complainant’s place of residence;
A prohibition against seeking or continuing any employment or volunteerism that involves being in a position of authority or trust towards persons under the age of 16;
A prohibition against being in the company of or communicating with anyone under the age of 16, except while supervised; and
A prohibition against using the internet or other digital except in accordance with the court’s order.
How long does a s.161 order last?
A s.161 order may be made for any duration the court considers desirable, including life.
Can I vary a s.161 order?
It is possible to vary a s.161 order, but the court’s permission is required. If you’re currently bound by a s.161 order and wish to vary its terms, contact our office today for a consultation.
What are the penalties for failing to comply with a s.161 order?
Canadians found guilty of failing to comply with a s.161 face a maximum of four years jail where the Crown proceeds by indictment. If the Crown proceeds summarily, the maximum term of imprisonment is 18 months.
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