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Sexual Assault & Offences

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Sexual Assault Defence Serving Alberta and Northern & Western Canada

Are you being accused of sexual assault? Even if you think you are innocent, you should always seek the advice of a criminal defence lawyer before speaking with the police. Seeking the advice of an experienced defence lawyer will provide you with the necessary information you need to know about your rights and responsibilities.

Hiring a respected criminal defence lawyers is the most important first step to ensuring anything you say or do will not be used against you in your criminal case.

Police, prosecutors, and the courts take sexual assault allegations very seriously in Canada. In fact, it’s important to be aware that criminal charges are typically laid once a sexual assault complaint is filed with police. There is a “mandatory minimum” jail sentence for most sexual offences. If you are accused of a sexual assault offence; violating the sexual integrity of another individual for a sexual purpose, it’s imperative to seek the advice of legal counsel as soon as possible.

What defines sexual assault?

Sexual assault is a term used to refer to all incidents of unwanted sexual contact, not just non-consensual intercourse. Sexual assault includes touching, kissing, and fondling. The court determines whether the touching is sexual by reviewing the entire set of circumstances including the body part touched, the verbal and physical gestures accompanying the act, the accused’s motives, and the situation in which it occurred.

To further explain what defines sexual assault Section 265 of the Criminal Code of Canada states a person is committing assault (including sexual assault) when:

(a) Without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) He attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) 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.

(3) For the purposes of this section, no consent is obtained where the submits or does not resist by reason of the application of force to the complainant or to a person other than the complainant;
(b) Threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) Fraud; or
(d) The exercise of authority.

(4) Where the accused alleges that he believed that the complainant consented to the conduct that is the subject matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.

Are there different sexual assault allegations?

Yes. Sexual assault does not mean just one type of act. If you are accused of sexual assault, our Edmonton or Grande Prairie office can provide a free consultation on the potential charges you may face.

When sexual assault allegations are made, there are three different charges that the accused may face. The Criminal Code of Canada (s. 271 and s. 272) defines sexual assault in three different categories; sexual assault (level 1), sexual assault with a weapon, threats to a third
party or causing bodily harm (level 2), and aggravated sexual assault (level 3).

Each level indicates the level of physical injuries that the complainant has sustained.

Sexual assault (level 1) suggests the accused committed an assault of a sexual nature, which violated the sexual integrity of the complainant but minor or no physical injuries were sustained. This can include kissing, touching, oral sex, vaginal or anal sex.

It is important to note that the issue of consent is very important when it comes to Level 1 sexual assault. If the complainant was drunk, under the influence of drugs, asleep or unconscious when the alleged sexual assault occurred, he or she may not have been able to could not freely give consent to the sexual activity.

Sexual assault with a weapon, threats to a third party or causing bodily harm (level 2) suggests the accused committed an assault of a sexual nature while carrying, using threats, or threatening to use a weapon,; or threatening to cause bodily harm to a person other than the complainant; or causes the complainant bodily harm.

Aggravated sexual assault (level 3) suggests the accused committed an assault of a sexual nature that resulted in maiming, disfiguring, or endangering the life of the complainant.

Additional information you should know about sexual assault offences:

Canada offers no statute of limitations on sexual assaults. This means there is no time frame in which you can be accused of a sexual assault. An incident could have occurred years ago.

Hiring a well-respected criminal defence lawyer is the first step to a successful outcome against all allegations. Contact our Edmonton or Grande Praire Office for a free consultation.

What are other sexual offences besides sexual assault?

Bestiality – Penetrative sex, either vaginal or anal with an animal.

Child pornography –Accessing, distributing, or possessing child pornography (sexually explicit or sexually suggestive video or photographic representations of anyone under the age of 18).

Invitation to sexual touching – Invites, counsels, or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16 years.

Luring – Using a telecommunication computer system to communicate with a person who is believed to be under a specific age (18, 16, or 14) to facilitate an offence under the Criminal Code. Depending on the age of the person that you are communicating with, different offences apply.

Sexual exploitation – A person in a position of trust or authority, for a sexual purpose, touches, directly or indirectly, with a part of the body or an object of a young person or person with a disability. Or, for a sexual purpose, invites, counsels or incites a young person or person with a disability to touch the body of any person including the person who is inciting, counselling or inviting, directly or indirectly, with a part of the body or an object.

Sexual interference – For a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years.

Voyeurism – Observing or recording someone who has a reasonable expectation of privacy.

(Source: Criminal Code of Canada s. 150-182)

What defines consent in Canada?

As noted above and in the Criminal Code of Canada (s. 273), a person cannot freely give consent to sexual activity if she or he is grossly under the influence of alcohol or drugs, is unconscious or asleep. It’s, therefore, important to take the reasonable, necessary steps to ensure the other person is consenting before engaging in sexual activity. In addition to physical consent, you must also be aware of Canada’s age of consent.

What is the age of consent in Canada?

The age of consent in Canada is 16 years. While there are exceptions (as detailed below), only when the person turns 16 years of age is she or he legally allowed to give consent to take part in sexual activity.

What are the exceptions to Canada’s age of consent?

The Criminal Code of Canada provides two exceptions to Canada’s age of consent – “close in age” and “peer group”.

What is referred to as the “close in age” exception allows individuals who are 12 or 13-years-old to consent to sexual activity with someone who is less than two years older than they are.

The “peer group” exception allows individuals ages 14 or 15 to engage in sexual activity with individuals who are less than five years older than they are.

What is important to mention is that these exceptions are only valid if the older partner is:

• not in a position of authority, trust, or dependency to the other person.
• the relationship is not exploitive.

If none of the above exceptions applies and a person under the age of 16 engages in sexual activity, a criminal charge could be laid. For example, if a 14-year-old consents to sexual activity with a 20-year-old, no “consent” was in fact granted under Canadian law. The 20-year-old may therefore, be found guilty of a sexual assault.

Can there be a mistaken belief of consent?

There are circumstances when the accused has had an honest mistaken belief of consent. This can happen through verbal or physical communication. Keep in mind; honest mistaken belief of consent is not valid if the accused took part in any of the following scenarios at the time of the alleged sexual assault:

• Self-induced intoxication;
• Recklessness or willful blindness; or,
• Failing to take the necessary steps to ensure the complainant was consenting

When belief in consent is not a defence

The Criminal Code (s. 265) states that it is not enough for the accused to assert that he or she took reasonable measures to ensure the complainant provided consent to sexual activity. Sufficient evidence provided by the accused is required. An experienced sexual assault lawyer can help gather the evidence necessary for an acquittal.

Consequences of a sexual assault conviction

If you’re convicted of a sexual assault offence, you are faced with numerous consequences. Because of the broad range of what constitutes a sexual assault, you may be facing anything from probation to an extended period of incarceration. The maximum sentence that you may face is 14 years imprisonment or 10 years imprisonment depending on the age of the complainant. A conviction for a aggravated sexual assault conviction can mean life in prison. In addition to being imprisoned, a sexual assault conviction could be followed by a civil lawsuit.

What is the National Sex Offender Registry?

If you are convicted sexual offender, the court can require you to enter your information into the Canada’s Sex Offender Registry. This is a database with information on individuals, across the country, who have been convicted of designated Criminal Code offences. These offences include:

• Sexual interference
• Invitation to sexual touching
• Sexual exploitation
• Incest, bestiality
• Child pornography
• Parent or guardian procuring sexual activity
• Exposure
• Sexual assault
• Sexual assault with a weapon, threats to a third party or causing bodily harm
• Aggravated sexual assault

You can also be required to register with land in the National Sex Offenders Registry if you have attempted or conspired to commit any of the above.

While your name would not be accessible to the public, it would be accessible to all accredited Canadian police agencies throughout each province and territory. The Sex Offender Information Registration Act (SOIRA) requires registered individuals to provide the following information every year:

• Name
• Date of birth
• Current address
• Current photograph
• Identifying marks (e.g. tattoos, scars)
• Vehicle information
• Type of employment and/or volunteering and address
• Sex offence(s) for which the offender has been convicted.

(Source: Royal Canadian Mounted Police)

The police are also able to notify the public when a sexual offender is released from a correctional facility into the community. Therefore, even though the National Sex Offenders Registry is not accessible to the public, the police can make them aware. If your name is entered onto the National Sex Offenders Registry, you could potentially be on it for life. A successful legal strategy presented by a criminal defence lawyer from our Edmonton or Grande Prairie Office can help you avoid this.

Hiring a Respected Defence Lawyer is Vital

The stigma of being accused of sexual assault in Canada can significantly damage your reputation. Because of the negative ramifications and the high possibility of charges, we recommend you hire the services of a respected defence lawyer who specializes in sexual assault and sexual offences.

Police, prosecutors and the courts all treat sexual offences very seriously. An individual accused of a sex crime would be well advised to take his situation seriously, too.

Many sexual offences in the Criminal Code require “mandatory minimum” jail sentences

The consequences to a person convicted of sexual assault or another sexual offence are severe and life-changing. Many sexual offences in the Criminal Code require “mandatory minimum” jail sentences. This means if a person is convicted of the offence, the court must impose a jail sentence. Even for the sexual offences which do not require a mandatory minimum sentence, significant jail terms are often imposed.

A conviction for sexual offence may have other consequences, as well. In addition to the stigma that goes along with being convicted of a sexual offence, a convicted sex offender may not be able to obtain certain kinds of employment, may be prohibited from entering into  professional organizations or barred from performing certain volunteer or charitable activities. Travel to other countries may also be restricted. For example, a person who has been convicted of a sex offence in Canada is ineligible to enter the United States.

A knowledgeable and experienced criminal defence lawyer representing you is vital

The legal issues arising in the prosecution of sexual
offences can be complex. Some of the more common issues include:

  • Whether there was consent and whether the accused individual had an honest belief that there was consent;
  • the age of the complainant and the accused’s belief as to the complainant’s age;
  • the legal effect of alcohol consumption by either or both of the accused individual and the complainant; and,
  • whether prior or subsequent sexual activity is relevant and can be raised in court

Not everyone charged with a sexual offence will be convicted. False accusations do occur. Sometimes mistakes are made and the wrong person is charged. Having one of our experienced Edmonton or Grande Prairie based lawyers who understands the complexities of the legal and evidentiary issues in sexual offence prosecutions and who is willing to investigate the allegation can mean the difference between a conviction and an acquittal.

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