SEXUAL INTERFERENCE AND SEXUAL ASSAULT

Sexual Assault Lawyer in Mississauga & Brampton

A sexual offense is an assault that occurs for a sexual purpose. “Sex crimes” is a sensitive area of the law. Many cases of this nature have no corroborating witnesses and are therefore referred to as “he said-she said” cases.  Knowing that a large number of these cases involve only two people, the alleged victim, and the alleged assailant, prosecutors will file and pursue sex offenses even where the evidence appears weak and/or the victim lacks credibility. For these reasons, as well as many others, a person being charged with a sex-related offense should always be adequately represented.

There are many potential defences to sex crimes cases. Some examples are: consent, insufficient evidence and mistaken identity. Obviously, depending on the crime alleged, these may or may not apply to your case.

Sexual Assault:

Sexual assault is defined as sexual contact with another person without that other person’s consent. Consent is defined in section 273.1(1) as “the voluntary agreement of the complainant to engage in the sexual activity in question.”

Section 265 of the Criminal Code defines the offences of assault and sexual assault.

Section 271 criminalizes “sexual assault”, section 272 criminalizes “sexual assault with a weapon, threats to a third party or causing bodily harm” and section 273 criminalizes “aggravated sexual assault”.

Recent Fabrication:

Fake and false complaints about sexual assault can be made by people who want to use the police and the court system to punish a person or seek a legal advantage (i.e. in a child custody dispute).

A person in this situation must be vigilant and fight such fake allegations.

Consent:

The absence of consent defines the crime of sexual assault. Section 273.1 (1) defines consent, section 273.1 (2) outlines certain circumstances where “no consent” is obtained, while section 273.1 (3) states that subsection (2) does not limit the circumstances where “no consent” is obtained (i.e. subsection (2) describes some circumstances which deem the act to be non-consensual, but other circumstances, not described in this section, can also deem the act as having been committed without consent).

“No consent” to sexual assault is also subject to Section 265 (3), which also outlines several situations where the act is deemed non-consensual.

In 2011, the Supreme Court of Canada in R. v. J.A. interpreted the provisions below to find that a person must have an active mind during the sexual activity in order to consent, and that they cannot give consent in advance.

Meaning of Consent:

273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

Where no consent obtained

(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where (a) the agreement is expressed by the words or conduct of a person other than the complainant; (b) the complainant is incapable of consenting to the activity; (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (e) 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.

Subsection (2) not limiting

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.

• Section 265(3)

Consent

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (a) 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.

In accordance with 265 (4) an accused may use the defence that he or she believed that the complainant consented, but such a defence may be used only when “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;” furthermore according to section 273.2(b) the accused must show that he or she took reasonable steps in order to ascertain the complainant’s consent, also 273.2(a) states that if the accused’s belief steams from self-induced intoxication, or recklessness or wilful blindness than such belief is not a defence.

• 265 (4)

Accused’s belief as to consent

(4) Where an accused alleges that he or she 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.

• Where belief in consent not a defence

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 (a) the accused’s belief arose from the accused’s

(i) self-induced intoxication, or

(ii) recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

Types of Sexual Crimes:

Aswani K. Datt has experience handling a variety of sex crimes. There are specific crimes a person can be charged with under the Criminal Code:

• sexual assault
• criminal solicitation of a minor
• aggravated kidnapping
• sexual touching
• sexual interference
• public lewdness
• indecent exposure
• indecency with a child
• improper relationship between educator and student
• improper photography or visual recording
• luring
• aggravated sexual assault
• prohibited sexual conduct
• prostitution
• promotion of prostitution
• obscene display or distribution
• obscenity
• sale, distribution, or display of harmful material to minor
• sexual performance by a child
• employment harmful to children
• possession or promotion of child pornography

Minors:

Sex offences involving children elicit more outrage and condemnation than almost any other type of crime.

Because of the stigma attached to sexual offences, many unstable or unscrupulous people will falsely accuse a family member, neighbour, teacher, or someone else they dislike of committing a sex crime. Sometimes prosecutors unknowingly rely on false statements and testimony. The results can be devastating, even if the allegations are proved false.

People who are convicted of sex crimes are fearful of what could happen to them if they go to prison. Those convicted of sex crimes often face lifetime registration as a sex offender. Essentially, they will carry the sex offender label with them for the rest of their life, no matter where they move.

Sex Offender Registry:

Canada’s National Sex Offender Registry (NSOR) came into force on December 15, 2004, with the passing of the Sex Offender Information Registration Act (SOIR Act). Since then, any offender who is convicted of a designated sexual offence may be ordered, at the time of sentencing or as soon as possible thereafter, by the court to register with the registration site that serves the area of their main residence. A person so ordered must register within 15 days, or if they are incarcerated for their crime, within 15 days from their release date. The information that is collected from the offender is confidential and is not available to the public.

The NSOR database also contains details concerning many sex offenders who were convicted and sentenced prior to December 15, 2004, referred to as “retrospective” offenders, the criteria being that they must have still been serving an active portion of their sentence on the date that the SOIR Act came into force (eg. still incarcerated, on probation, or on parole). These retrospective offenders were tracked down by various law enforcement authorities and were served with a Notice that they were required to register for the NSOR after a one-year grace period. The last day of that grace period was December 15, 2005.

Anyone required to register with Canada’s National Sex Offender Registry is required to comply with the following obligations:

1. to register with their registration site once a year. (The registration site is usually the police agency that serves the area where the offender’s main residence is located, although this description varies somewhat by province or territory);
2. to advise their registration site, within 15 days, of any change of name;
3. to advise their registration site, within 15 days, of any change of address;
4. to advise their registration site, within 15 days, of any absence from their main address that will be for at least 15 consecutive days. They must advise of their date of departure, their actual or estimated date of return, and of the address(es) where they will be while absent. In addition, the offender is required to advise the registration site, within 15 days of their return to their residence, of their actual date of return.

An Order or Notice requires an offender to comply with the SOIR Act for a term of either 10 years, 20 years, or life. The term is determined by the maximum possible penalty the offender could have received for the offence for which he/she was sentenced. Also, if the offender has a previous conviction for any sexual offence (it does not have to be the same sexual offence for which they’re now being sentenced), or if they’re already under a previously-issued Order or Notice, the minimum term that will apply is Life.

DNA Samples:

Since a sexual offense is designated as a “primary offense” in Canada, a person found guilty of this crime will have to give a sample of his/her DNA to have it entered into the National DNA Databank.

Jail Sentences:

Depending on the seriousness of the sexual conduct, a person faces significant jail time if there is a finding of guilt. Furthermore, there is the issue of having this on a persons’ criminal record which can have negative consequences on finding employment and traveling abroad.

Contact Us for a consultation. I offer strategic, intelligent and aggressive advocacy focused on your rights