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SEXUAL OFFENCES

Sexual Offence Defence

A sexual offence allegation carries a stigma that attaches the moment it is made and does not wait for a verdict. These are among the most serious prosecutions in the Criminal Code, they involve specialised evidentiary rules, and they demand a defence conducted with discipline and complete discretion.

THE CHARGE

What these prosecutions involve

Sexual assault under section 271 is any assault of a sexual nature. There is no requirement of injury, no requirement of a weapon, and no minimum duration.

Because the definition is broad, the range of conduct captured is enormous, from a single touch over clothing to the most serious allegations in the Code. The stigma attaches uniformly, which is precisely why the distinctions matter and why the evidence has to be examined with care.

These files are rarely about whether an event of some kind occurred. They are usually about consent, about the reliability of an account given months or years later, and about what the accused reasonably understood at the time. Consent in Canadian law is specific: it must be voluntary, contemporaneous with the activity, and it cannot be given in advance or by a person incapable of giving it.

Historical allegations

Allegations from years or decades earlier are prosecuted regularly. There is no limitation period. What there is instead is a real question about how reliably anyone recalls detail after that long, and about what records still exist to test the account.

Specialised applications

Evidence of a complainant’s other sexual activity, and records in which a complainant has a privacy interest, are governed by their own statutory regimes and require formal applications with strict notice requirements. Running these applications properly is a technical exercise and it has to be planned for from the beginning.

THE CHARGES IN THIS GROUP

What you may be facing

Sexual assault, s. 271
The core offence. Consent, capacity and honest but mistaken belief in communicated consent are usually the live issues.
Sexual assault with a weapon or causing bodily harm, s. 272
Substantially higher exposure with mandatory minimum considerations in some circumstances.
Sexual interference, s. 151
Touching a person under sixteen for a sexual purpose. Carries a mandatory minimum sentence.
Invitation to sexual touching, s. 152
Inviting a person under sixteen to touch. Prosecuted on the same footing as interference.
Sexual exploitation, s. 153
Where a relationship of trust, authority or dependency is alleged with a young person.
Voyeurism, s. 162
Surreptitious observation or recording in circumstances giving rise to a reasonable expectation of privacy.
Distribution of intimate images, s. 162.1
Publishing or distributing an intimate image without consent. Frequently arises out of a relationship breakdown.
Internet based offences
Luring, making available and possession offences, which turn heavily on device forensics and attribution.
THE BURDEN OF PROOF

What the Crown has to prove

Every element must be established beyond a reasonable doubt. If one element fails, the charge fails with it.

THE ELEMENTS
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That the touching occurred and that it was sexual in nature, viewed objectively in all the circumstances.
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That the complainant did not consent in law to the activity in question at the time it occurred.
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That the accused knew of the absence of consent, or was reckless or wilfully blind about it.
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Where age is an element, that the complainant was under the relevant age and that the accused did not take all reasonable steps to ascertain age.
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That the identification of the accused is reliable, which in historical and online matters is frequently the weakest link.
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That any digital evidence relied upon was lawfully obtained and can be properly attributed to a specific person.
EXPOSURE

Penalties and consequences

Custodial exposure
Sexual assault carries up to ten years on indictment, and considerably more where a weapon, bodily harm or a young complainant is involved.
Mandatory minimums
Several offences involving complainants under sixteen carry minimum sentences that constrain the available outcomes.
Sex offender registration
Convictions engage registration obligations under provincial and federal schemes, with long or lifetime reporting duties.
DNA and ancillary orders
DNA orders, weapons prohibitions and conditions restricting contact with young people are commonly imposed.
Reputation and employment
The allegation itself frequently ends employment and professional standing, long before the case concludes.
Immigration
For non citizens these convictions carry among the most severe immigration consequences available.
Sentencing depends on the facts, the record of the accused and the position taken by the Crown. Nothing here is a prediction of the outcome of any particular case.
THE DEFENCE

How the defence is built

These files reward preparation more than any others. They are won on the detail of the account, the state of the record, and the correct use of the applications the Code provides.

Consent and communicated consent

The law asks what was communicated and what was reasonably understood. Messages, timelines and the conduct of both parties before and after the alleged event are frequently the most probative evidence in the file.

Reliability of the account

Reliability is not honesty. An account can be given sincerely and still be wrong about who, when, where or what. Where an allegation is years old, the absence of corroborating detail is a legitimate and important issue.

Digital and forensic evidence

Device attribution, account access, metadata and the lawfulness of the search that produced the material are all live. In internet based prosecutions this is usually where the case is decided.

Applications under sections 276 and 278

Where prior sexual activity or third party records are genuinely relevant, the statutory applications must be brought properly and on time. Failing to plan for them forfeits the argument.

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Not every one of these files goes to trial. Some resolve on a lesser included offence, some are withdrawn where the evidence collapses, and some proceed to trial because that is the only responsible course. That decision is made with you, on the evidence, and never by default.
HOW THE FILE IS RUN

What happens once you retain

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Disclosure is requested immediately and read in full, including officer notes, audio, video and the continuity of every exhibit.
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Release conditions are reviewed at the outset. Terms that make work, housing or contact with family unworkable can often be varied long before the case ends.
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Legal issues are identified early, while there is still time to build a record for them.
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The Crown is engaged from a prepared position. Resolution is pursued where it serves you, not because it is convenient.
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You are kept informed throughout and you decide how the matter proceeds.
QUESTIONS WE ARE ASKED

Frequently asked questions

Will my name be public?
Publication bans in these matters protect the identity of the complainant. Proceedings are otherwise generally open, and the practical exposure is discussed candidly at the first meeting.
The allegation is from many years ago. Can they still charge me?
Yes. There is no limitation period for these offences. Delay does not bar the prosecution, but it can bear meaningfully on the reliability of the evidence.
Can these charges be withdrawn?
They can be, where the Crown concludes there is no reasonable prospect of conviction. That conclusion follows from the weaknesses in the evidence being identified and put to them properly.
What if we had been intimate before?
Prior history does not establish consent on the occasion in question, and evidence of it is governed by section 276. Where it is genuinely relevant it must be advanced by formal application.
Do I have to testify?
No. You are never required to testify, and whether you should is one of the most consequential strategic decisions in the case. It is made late, on the state of the evidence, and only after full discussion with you.
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