Sexual Offences

HAVE YOU BEEN CHARGED WITH SEXUAL ASSAULT? WORRIED YOU MIGHT BE CHARGED?

Any experienced Sexual Assault lawyer will tell you that that it is
vital that to seek advice from a Criminal Lawyer IMMEDIATELY. If you have been charged or believe you may be charged, speaking to a sexual assault lawyer at LAWYER UP will give you these benefits:

• Criminal defence lawyer in your corner from day one protecting your rights.
• No need to speak to the Police. We’ll deal with that.
• Peace of mind – We’ve got your back. You are not alone.
• Understanding of the charges or potential charges you face.
• Understanding of ALL potential consequences to you, both
  criminal, immigration, employment, travel etc.
• How to best prepare for dealing with the challenge ahead.

READ THIS BEFORE YOU SPEAK TO THE POLICE

• Connect to a sexual assault lawyers at Lawyer Up – BEFORE the Police come knocking AND if they reach you 1st, DO NOT speak to them about the incident.
• Know that you have a right to remain silent AND to contact
  counsel without delay.
• Don’t be naive. The Police may say they are just trying to get your side of the story when a complaint is made. They may give you the impression that if you cooperate and talk to them there is a real chance of the complaint going away.
• The reality is that in most situations you are really in the midst of
  a police investigation.

• Anything you say will likely be recorded and used against you in any Criminal Charge. Your statements will make your defense much more difficult.
• And, in most cases, no matter what you say, the Police are likely going to charge you in any event.
• No Negative inference can be drawn by the Courts by the fact that you refuse to speak to any Police and speak to your lawyer.
• Also, do not speak to anyone else about the incident, especially the complainant before speaking to a lawyer.
• Do not erase any texts, videos, or destroy any evidence of any kind as this can hamper your defense in helping you and may in fact harm your case if it is discovered you destroyed evidence.
• Call our office so you will be well prepared if you get that knock at the door or phone call from the Police. We will be available before you call a defense lawyer immediately.

Sexual assault is complex area with many forms of offences and is treated very seriously by the Courts.

• High degree of difficulty to obtain Bail
• High risk of significant jail time
• DNA records obtained
• Listed on the Sex Offender Registry for 10 years to life
• Embarrassment and Stigma of the Charge
• Restriction in Travel especially to the UK and USA
• Inability to work with Vulnerable Sector Persons or children (in sports, schools etc.)
• Restrictive Probations
• Orders for Counselling and Treatment

PENALTIES

There are a wide range of types of offences, and a wide range of penalties. Each case will be judged on the particular circumstances. Some Sexual Assault Sentences can go up to Life in prison, listing on a sexual offender registry having many negative consequences on your future.

For the least intrusive forms of sexual assault there may be no jail at all for a first offender up to a maximum of 14 years for certain offences

When it comes to young victims under 16, Mandatory Minimum Sentences of 1 year will apply e.g., Charges of sexually assaulting a person under 16 or for sexual interference of a person under 16.

HOW DO WE DEFEND SEXUAL ASSAULTS

We seek the withdrawal of charges and acquittals by:

• Paying meticulous attention to detail;
• Gathering all the facts, reviewing complainant and witness statements;
• Testing the evidence on Cross-Examination;
• Seeking to establish reasonable doubt on all required elements of the offence including that no assault took place in the first place;
• Raising doubt in your case using complex technology arguments;
• Raising constitutional defences;
• Raising affirmative defences;
• Bringing all necessary Charter applications;
• Examining Entrapment and bring entrapment Charter applications where necessary;
• Demanding more disclosure than the Police and Crown have provided;
• Reviewing Search Warrant procedures by the Police;
• Scrutinizing police investigative procedures;
• Conducting our own investigations;
• Work with computer and internet experts;
• Conduct forensic investigations on hard drives, computer systems and cell phones;
• Bringing forward any defence as to consent- such as the accused having an honest but mistaken belief that there was consent;
• etc.

YOUR PRIVACY, YOUR REPUTATION

Due to the stigma in these kinds of charges we do everything possible to ensure your privacy and reputation are protected or repaired as much as legally possible both before, during and after any ruling.

WHAT IS SEXUAL ASSAULT

Sexual Assault occurs when the assault is “sexual in nature” and violates the sexual integrity of the victim with unwanted sexual touching.  This will depend on the nature of the contact, area of the body contacted, the context of the contact (words, body language etc) and the accused’s motivations or intentions.  Proof of sexual gratification is not necessary therefor a violent action to a sexual area can also create a sexual assault.

This is a complex area with a wide range of offences and a wide range of factors that apply to each of those offences.

CONSENT

Consent exists when there is agreement between the parties to engage in sexual activity.  Some cases are very clear and some are less so.

• Consent obviously cannot be given if they are incapacitated by drugs, alcohol, mental condition, mental state, or unconsciousness, or if the consent is given by someone other than the person.
• Even if the complainant starts with consent then becomes incapacitated, there would be no consent to continue in this circumstance.
• Similarly, in cases where sexual activity commences initially with consent but the participant communicates they no longer wish to continue with any sexual activity or a specific type then the accused must not continue unless there is a clear change of mind by the participant to continue.
• Consent is considered at the time of the sexual activity not from a future point in time. Hence if a complaint later changes their mind about an encounter and “regrets it” this is not a ground to support a finding of lack of consent.
• Courts will look at all the circumstances including words and behaviour of the complainant
• Complainants are not obliged to demonstrate their lack of consent by objecting, through either words or gestures
• Failing to resist sexual contact is not the same as consenting to being touched
• Consent will not be present where an accused is in a position of power or trust over the complainant and induces the activity such as a sports coach, teacher, even a partner who depends on the accused for their support
• Implied consent is not a defence. Therefore silence or acquiescence on part of a complainant may land you in trouble.

KEYS TO YOUR DEFENCE REMEMBER

• The CROWN bears the burden to prove all the elements of the offence beyond a reasonable doubt
• Cases fall apart when the alleged event cannot be proven
• If Consent is present for all parts of the activity then there is a defence, except in certain circumstances especially regarding minors
• Strict scrutiny of the complainant’s evidence on cross-examination or by disproving it before trial is important to establishing reasonable doubt
• We keep up on the evolving law in this area is necessary to defend you to the maximum permitted by law
• We understand the special rules and complex motions and rules in this area
• We understand when to apply for publication bans and other orders to maintain your privacy and how to best preserve your reputation at all stages of the process including after any resolution or trial
• We understand defamation laws and will use them when needed to deter anyone from wrongfully attacking your reputation

WHAT IS AGGRAVATED SEXUAL ASSAULT

Aggravated Sexual Assault charges are laid when a victim of sexual assault is wounded, suffers disfigurement or maiming, or is put in a life-threatening situation during the attack. In that case, this form of assault can be deemed to be aggravated sexual assault and a conviction can lead to very lengthy jail sentences.

Aggravated sexual assault is an indictable offence. No conditional sentence is available, and jail is always sought upon conviction.  If a firearm is used, if the complainant is under 16, or the offender is associated with a criminal organization, the maximum penalty is life in prison.

SEXUAL EXPLOITATION

Sexual Exploitation is set out in Section 153 (1) of the Criminal Code. is also a listed offence under Section 172.1 – the child luring section of the Criminal Code along with any other child related sexual offence.

Sexual exploitation occurs when a person in a position of power or trust abuses or attempts to abuse their position over someone between 16 but under 18 for a sexual purpose. Even if the young person appears to give consent it is no defence as the law has determined that consent cannot be legally given in these circumstances.

The Penalty if the Crown elects to proceed summarily  maximum jail term is two years less a day and a mandatory 90 day incarceration; if by indictment, the  maximum is 14 years in prison with a mandatory minimum of 1 year in jail.

INVITATION TO SEXUAL TOUCHING

Sexual touching is covered in S. 152 of the Criminal Code and occurs if a person encourages someone under 16 to touch the accused or another person’s body for a sexual purpose.

The Penalty if the Crown elects to proceed summarily  maximum jail term is two years less a day and a mandatory 90 day incarceration; if by indictment, the  maximum is 14 years in prison with a mandatory minimum of 1 year in jail.

CHILD LURING

Child Luring is set out in Section 172.1 of the Criminal Code and makes it an offence by means of a computer system to make contact with  anyone under 18 for the purpose of facilitating the commission of any number of specified sexual offences under the Criminal Code.  Section 172.1 has 3 different categories: for youth under 18, youth under 16, and youth under 14.

If the Crown proceeds by indictment, the punishment is imprisonment up to 10 years, and if by way of summary conviction, imprisonment  can be for a term not exceeding eighteen months.

It is NOT A DEFENCE In Child Luring cases that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.

SEXUAL INTERFERENCE

Sexual interference occurs when anyone touches a person under age 16 for a sexual purpose.  If the charge is prosecuted summarily the sentence can be up to 2 years less a day in prison and a minimum of 90 days in jail.If prosecuted by indictment, the maximum penalty is 14 years in prison with a mandatory minimum of 1 year in jail.

VOYEURISM

Voyeurism occurs when anyone observes or records another in circumstances where they would have a reasonable expectation of privacy, without their knowledge or consent.  An example would be installing and recording users of a washroom. Circumstances that the Court will look at include where a person might be expected to be nude or engaged in sexual activity or where the recording is made for a sexual purpose.

SEXUAL ASSAULT WITH A WEAPON, WITH THREATS OR CAUSING BODILY HARM, WITH CHOKING

Section 272 (1) of the Criminal Code covers all of the above offences and punishment is among the most severe in the sexual assault spectrum. The maximum penalty is up to 14 years in prison.  If restricted or prohibited firearms are used, or criminal organization involved, there is a mandatory prescribed sentence of 5 years for a 1st offence and 7 years on an 2nd or subsequent offence. In any other case where a firearm is used a mandatory 4 year sentence and maximum of 14 years.  If the victim is under 16 the mandatory minimum is 5 years and a potential maximum of life imprisonment.

SEXUAL ASSAULT WITH CHOKING

RECENT DEVELOPMENTS IN THE LAW: BILL C-51 amending the Criminal Code

In an effort to protect complainants in sexual assault matters, and to give them more protection against abuse in the Courts, the Canadian Government introduced Bill-C51 to amend the Criminal Code.

In the June 2022 decision of R v. J.J. The Supreme Court of Canada made a landmark ruling in a sexual assault case that confirms the new rules that apply to Defence counsel in cases where Counsel attempt to access the records and privacy of the Complainant.

The key points are as follows:

• The Court upheld the new amendments and strikes a balance between the Defendant’s right to make a full answer and defence by having access to certain aspects of a complainant’s records and the complainant’s rights and need for privacy.
• Court provided guidance on how the new provisions are to be interpreted and stated sections 278.92 to 278.94 of the Criminal Code were created to remove barriers preventing sexual assault victims from coming forward. The goal of those sections was to have a process to protect the interests of complainants in their own private documents when anaccused has those documents and wants to use them at trial. This process balances the rights and interests of the accused, the complainant and the public.
• The Court stated that an accused’s right to a fair trial does not mean they can receive the most advantageous or beneficial trial possible and necessary limits must be imposed on them.
• Finally, the accused’s right to present and challenge evidence is not unlimited. Ambushing complainants with their own highly private records at trial can be unfair to complainants and may be contrary to the search for truth.

This is an important ruling as it provides a new framework for Defence Counsel to follow when defending sexual assault cases.

WHY CHOOSE US AS YOUR SEXUAL ASSAULT LAWYER ?

1. We know the Law: We understand the unique differences between all the various sexual assault offences and have the skill to deal with any one of these complex areas. We make sure the legal system works not just for the police and the Crowns but for you!
2. We are Fast: We will be in your corner from the first phone call.
3. Unique Plan: We will develop with you a unique plan for your case. We will consider all of your personal factors, family, employment, immigration, travel and finances.
4. We Listen: You can reach us by phone/email anytime.
5. Progress Updates: regular progress updates on your case.
6. You are Never Alone: We communicate with you. You’ll never be in the dark.
7. Peace of Mind: We’ll go to court for you so you don’t have to.
8. We Go Above and Beyond to Have your Back: We are in Your Corner and dig deep, working hard and smart leaving no stone unturned to protect your rights using all legal means available.
9. Flexible Financial Plans: We’ll work out financial payments that you can manage.
10. We See the Big Picture: We’ll protect ALL of your rights. Under Canadian law you are presumed innocent until proven guilty. You are not required to prove your innocence, only raise a reasonable doubt as to your guilt, based on all the evidence before the Court.We try to minimize the negative effects of a conviction and criminal record on you which could expose you to civil actions, risk to employment, education, or travel plans and harm your immigration status.
11. One Stop Legal: We can deal with any spin off legal issues including your immigration, employment or any civil actions if needed so you won’t have to find another lawyer. Since we know your case you’ll save money.
12. Our Goal: We aim is to investigate the facts and to negotiate a conviction-free result for you. Our goal is always to help you first to have a conviction-free resolution with NO CRIMINAL RECORD and second, to avoid any jail time, and in the worst scenario, from any harsh sentence.