Sexual Assault Charges: How to Improve Your Chances of an Acquittal
Sexual assault is treated with the utmost severity by the Crown. Even a false accusation may leave a lingering mark on the life of the accused.
What is sexual assault? In Canada, the definition of sexual assault in quite broad. It involves non-consensual activity that interferes with the sexual integrity of another person. This can be anything from unwanted touching, groping, kissing, fondling and rape.
In Ontario, a conviction for sexual assault will bring severe consequences such as a lengthy jail sentence, strict supervision while on parole and/or probation, loss of job opportunities, and forced registration on federal and provincial sexual offender registries.
Your rights, freedom and reputation are at stake. If you are charged with sexual assault, even if it is a false allegation, it is important to immediately contact an experienced criminal defence lawyer in Toronto. John Erickson has been practicing as a sexual assault lawyer for over 20 years and had successfully defended numerous individuals.
Erickson Law fights on your behalf to ensure that justice is served.
Types of Sexual Offences in the Criminal Code of Canada
- Sexual assault, section 271
- Sexual assault with a weapon, threats, or causing bodily harm, section 272
- Aggravated sexual assault, section 273
- Sexual interference of a person under 16 years of age, section 151
- Invitation to sexual touching of a person under 16 years of age, section 152
- Sexual exploitation of a person who is either 16 or 17 years of age, section 153
- Sexual exploitation of a person with a mental or physical disability, section 153.1
- Incest, section 155
- Bestiality, section 160
- Voyeurism, section 162
- Obtaining sex for money or other consideration, section 286.1
- Living off the avails of prostitution, section 286.2
Sentences for Sexual Offences
Under the Criminal Code of Canada, there two general types of sentences that an accused may receive if they plead or are found guilty: convictions and discharges.
What are Convictions?
Convictions are sentences that involve jail, fines, conditional sentences (also known as “house arrest”), suspended sentences and probation.
Some types of convictions come with a mandatory minimum sentence and others do not.
What is a mandatory minimum sentence? A mandatory minimum sentence which one which a judge cannot go below.
If a Sexual Assault Victim is Under 16 Years: If the alleged victim of a sexual assault is under 16 years of age and the Crown Attorney elects to prosecute the case by indictment, then the mandatory minimum sentence, if convicted, is one year in jail and the maximum sentence is 14 years in jail. But if the Crown Attorney elects to proceed by summary conviction, then mandatory minimum sentence is six months in jail and the maximum sentence is 18 months in jail (which will increase when Bill C-75 comes into force).
If a Sexual Assault Victim is 16 Years or Older: There is no mandatory minimum sentence if the alleged victim of a sexual assault is 16 years of age or older. Therefore, is only a maximum sentence. If the Crown Attorney elects to prosecute the case by indictment, the maximum sentence is 10 years in jail and if they elect to proceed by summary conviction, the maximum sentence is 18 months in jail (which will increase to two years when Bill C-75 comes into force).
What are Discharges?
Discharges are the most favourable type of sentence and come in two forms, absolute discharges and conditional discharges.
What is an Absolute Discharge? If an accused pleads or is found guilty and receives an absolute discharge, this means that he/she is free to go and has no probation conditions placed upon them.
What is a Conditional Discharge? If an accused pleads or is found guilty and receives a conditional discharge, this means that he/she has certain probation conditions imposed on them which they must abide by for the length of probation (up to three years) and if they breach any one of them, can result in a new charge being laid against them of failing to comply with probation.
Often, people are led to believe that absolute and conditional discharges do not result in the accused having a criminal record as opposed to convictions which do. This is not entirely accurate. The term “criminal record” is not a defined term in Canadian law.
If an accused receives a conviction (i.e. a sentence that involves jail, fine, conditional sentence or suspended sentence), the only way to have it sealed is to apply for an receive a record suspension (formerly called a pardon) from the National Parole Board of Canada.
If an accused receives an absolute or conditional discharge, the RCMP is supposed to expunge it from CPIC (the RCMP’s national criminal database) one year for an absolute discharge is imposed and three years after the probation ends for a conditional discharge. However, the local police force that laid the charge will always keep a record of the arrest and outcome of the case on their local police database and can, in certain circumstances, use or disclose it to others, including potential employers.
Contact a Lawyer Immediately Before Talking to the Police
Upon being detained or arrested, many people panic and assume that talking to the police will lighten their sentence or swing things in their favour. This is NOT advisable. Instead, demand that you be able to speak to a lawyer IMMEDIATELY!
Upon your first interaction with the police, first ask if you are free to go or are under detention or arrest. If you are free to leave, do so. If not, demand that you be given the right to speak to a lawyer IMMEDIATELY and do not answer any questions other than giving your name and date of birth.
If ask to speak to a particular lawyer, the police must stop asking you questions and must give you a reasonable opportunity to speak to the lawyer you requested as soon as practicable. If you do not know any lawyers, then they must give you the right to speak to a free duty counsel as soon as praticable. Your lawyer will most likely advise that you exercise your right to remain silent.
Can you stay silent during police questioning? After you have spoken to a lawyer or duty counsel, the police may try to ask you questions. You are not required and, in fact, you are strongly advised not to answer any questions.
You should never lie to the police. Instead, you should simply tell them that your lawyer has instructed you to remain silent and not answer any questions. Beware that police do not have to take no for an answer. They can continue to ask questions and try subtly to persuade you to talk.
This sometimes comes by asking you if you would like to know what the details of the allegations are. They use this trick because they know that this will keep the conversation going and it is only natural for someone who is confronted with an allegation to want to give their side of the story. Beware of this!
If the police are trying to get you to continue talking, it is almost certainly because they want you to fill in or confirm details that they are uncertain of. What you should do, even if you know you are innocent, is, from the outset, politely and repeatedly decline to say anything. Do not lie!
Simply repeat as many times as necessary that your lawyer has instructed you to remain silent an. This is your constitutional right. It is guaranteed under section 7 of the Canadian Charter of Rights and Freedoms. The fact that you are choosing to exercise your constitutional right to remain silent can NEVER later be used against you.
The Benefits of Contacting a Lawyer
There are several reasons why you should hire a skilled and competent criminal lawyer without delay. Here are just a few of them;
- Often, a sexual assault charge boils down to one person’s word against yours. A good lawyer is able to spot the inconsistencies and improbabilities in the accuser’s version of events.
- The lawyer works with you to determine if there are any ulterior motives for the allegation.
- Your lawyer may also be able to obtain further evidence that shows that the accuser is not reliable or credible. There are several courtroom advocacy strategies to test the complainant’s credibility.
- If you have to testify at trial, your lawyer prepares you for the cross-examination that will come your way.
- A lawyer may be able to prove that any evidence brought against you was obtained illegally, meaning that it will be excluded and not used at your trial.
- Apart from all of the above, a skilled and qualified criminal defence lawyer is able to bring a wealth of knowledge to the table that may improve your chances of an acquittal.
Maximize Your Chances of Winning the Case
All criminal charges are taken seriously, but the Crown is particularly stringent with those involving sexual misconduct. If you are accused of sexual assault charges, you will need a lawyer who can provide an equally serious criminal defence, and will fight to ensure justice is served.