Few allegations change a person’s life as quickly. A detective leaves a voicemail asking you to “come in and tell your side.” Or you are arrested at work, released with conditions that bar you from your own home, and by the end of the week your employer knows. People who have been accused may feel shock, fear and anger. Complainants, for their part, may have spent months deciding whether to come forward. The justice system has to take both seriously, and in recent decades Parliament and the courts have built a detailed set of rules for these cases.
Those rules are unlike those in most other criminal trials, and they apply from an early stage. What you do in the first few days, especially regarding statements and contact, can have a lasting effect on your defence.
This article describes how the law generally works in Ontario for someone accused. It offers general information, not legal advice. If you are a complainant, you have your own rights and supports, and Victim Services of Peel or a sexual assault centre can explain them.
What the Charge Means
Sexual assault is an assault of a sexual nature that violates the sexual integrity of the other person. It need not involve intercourse, and the Crown does not have to prove any particular motive. An unwanted touch can qualify when the context is sexual, judged objectively.
The Code sets out three levels:
- Sexual assault (section 271). A hybrid offence. If the Crown proceeds by indictment, the maximum is 10 years, or 14 years if the complainant is under 16, with a mandatory minimum of one year in that case. On summary conviction, the maximum is two years less a day, with a six-month minimum where the complainant is under 16.
- Sexual assault with a weapon, threats to a third party, or causing bodily harm (section 272). A more serious offence, with a maximum of 14 years, or higher where a firearm or other circumstances are involved.
- Aggravated sexual assault (section 273). Wounding, maiming, disfiguring or endangering life, with a maximum of life imprisonment.
There is no limitation period for prosecuting the indictable versions of these offences. A complaint about something from many years ago can lead to charges today, although the older the events, the more carefully the law in force at that time may need to be checked.
Consent, in the Legal Sense
Nearly every contested case comes down to consent, and the legal meaning is narrower than many people assume. Section 273.1 defines it as the voluntary agreement of the complainant to the specific sexual activity at issue.
Some principles flow from that:
- Silence or passivity is not consent. The Supreme Court of Canada rejected any idea of “implied consent” in R. v. Ewanchuk. Consent is about what the complainant actually wanted at the time.
- Consent must exist during the activity. It can be withdrawn at any point, and it cannot be given in advance for a time when a person is unconscious.
- A person who is incapable cannot consent. This includes someone unconscious or too intoxicated to understand or agree to the activity. Drinking alone does not always mean incapacity, but the line is a real legal issue.
- Consent obtained by abuse of authority or trust, or through threats, is not valid.
- A past relationship or prior sexual contact does not create consent. Being married or dating changes nothing about this requirement.
An accused person may raise an honest but mistaken belief in communicated consent. Section 273.2 limits that defence heavily. It is unavailable if the belief arose from your own self-induced intoxication, recklessness or wilful blindness, or if you did not take reasonable steps, in the circumstances known to you, to find out whether the person was consenting. There must also be evidence that the complainant’s agreement was affirmatively expressed by words or conduct. Assuming consent because someone did not say no is not a defence.
Early Steps: Police Contact and Arrest
If a detective with Peel Regional Police calls and asks for a statement, you do not have to give one. You are entitled to speak to a lawyer before making any decision, and in most cases you should. The polite-sounding “just clearing this up” invitation is still a criminal investigation, and interview recordings can be used at trial.
Arrest may happen in a number of ways. Some people turn themselves in by arrangement through counsel and are released from the station. Others are held for a bail hearing at 7755 Hurontario Street. Expect release conditions to prohibit contact with the complainant, directly or indirectly, and to bar you from certain places. If you live together, that may mean moving out immediately, and it may complicate parenting or property arrangements. A family lawyer may need to be involved as well.
Where the allegation involves choking, suffocation or strangulation, the Code places the onus on you to show why you should be released. Your plan needs to clearly address the risks identified. Conditions, once in place, must be followed strictly until they are changed, even if the complainant reaches out to you. Do not respond. Tell your lawyer.
A Short Warning About Messages
You may want to text the complainant to explain, apologize or ask what is going on. Please do not. Even without a no-contact order, messages can be used as evidence, and an apology meant to soothe hurt feelings can be read as an admission. Do not ask friends or relatives to pass along anything, as that may be seen as indirect contact, or worse, as an attempt to interfere with a witness.
At the same time, do not delete anything. Texts, photos, social media messages, call logs, location history and rideshare or hotel receipts may all matter. Deleting them can harm your credibility and might even be considered obstruction. Preserve them, and give copies to your lawyer without altering them.
Where the Case Is Heard
The Crown first decides how to proceed. If it elects to proceed summarily, the trial is in the Ontario Court of Justice in Brampton. If it proceeds by indictment, you generally have a choice of a provincial court judge, or a Superior Court judge alone or with a jury.
Many people expect a preliminary inquiry, but it is not available on every charge. It is only available for offences punishable by 14 years or more. For a section 271 charge involving an adult complainant, which has a 10-year maximum, you will not have one. It may be available where the complainant is under 16, or on charges under section 272 or 273.
Between the first appearance and trial, the usual steps apply: disclosure from the Crown, a Crown pre-trial, a judicial pre-trial, and any applications. Sexual assault files often involve many pre-trial motions, so the schedule can stretch out.
Evidence Rules That Make These Trials Different
Prior sexual activity. Under section 276, evidence that a complainant has engaged in sexual activity cannot be used to suggest she or he was more likely to have consented or is less believable. Often called the “twin myths” rule, this has been upheld by the Supreme Court. Such evidence is only admissible through an application, with strict criteria, and in a closed hearing where the judge decides.
Private records. Therapy notes, counselling records, medical files and personal journals are also guarded. An accused person usually cannot simply subpoena them. And if the defence already holds such records, section 278.92 requires an application before they can be used. In R. v. J.J., the Supreme Court upheld this regime. Messages between the accused and the complainant are now excluded from that production regime, and therapeutic records face a higher threshold. Notice periods for these applications run 60 days rather than a few days, so these matters need attention well before trial.
No need for corroboration. Under section 274, the Crown does not need other evidence to back up the complainant’s account. A conviction can rest on a single witness if the judge or jury is persuaded beyond a reasonable doubt.
Protections for the complainant. A complainant can ask for a publication ban on identifying information under section 486.4. Testimonial aids, such as testifying behind a screen, by closed-circuit television, or with a support person, are generally available. If an accused has no lawyer, the court will typically appoint one to cross-examine the complainant, as section 486.3 allows. Other witnesses may have protections too.
These rules do not reverse the presumption of innocence. The Crown still has to prove each element beyond a reasonable doubt. Under the framework from R. v. W.(D.), if the judge or jury believes the accused’s evidence, or is left with a reasonable doubt by it, or if the rest of the evidence does not establish guilt beyond a reasonable doubt, the verdict must be not guilty.
Defence counsel may test a complainant’s reliability and credibility through fair questioning, such as about inconsistencies in earlier statements. However, stereotypes about how a “real victim” should behave, such as reporting promptly, avoiding the accused afterward, or fighting back, have no proper place in the analysis.
Testifying in Your Own Defence
You cannot be forced to testify. If you choose to, your evidence will be tested in cross-examination, and the decision is ultimately yours. In a he-said, she-said style case, your testimony can be central, but the risk is real. Discuss this carefully with your lawyer once you have seen all of the disclosure and heard how the Crown’s case actually comes in. Do not decide on day one.
Sentencing and Orders After a Finding of Guilt
If there is a guilty plea or finding, a sentence follows. Sentencing depends on the nature of the act, the harm, the relationship, the person’s background and many other factors. Courts treat these offences seriously, and in many cases the Crown will ask for jail.
Some of the options available in other cases are limited here:
- Conditional sentences. A conditional sentence served in the community is not available for section 271 when prosecuted by indictment, or for sections 272 and 273. It is also unavailable for an indictable sexual offence involving a victim under 18.
- Discharges. A discharge is excluded where there is a mandatory minimum or a maximum of 14 years or more. Nothing in the Code prevents one for an adult complainant under section 271, but it should not be counted on.
- Sex offender registry. The court must make an order to comply with the Sex Offender Information Registration Act in some cases, and in others must do so unless the accused establishes specific grounds for exemption under section 490.012. For an offence with a 10-year maximum, an order generally lasts 20 years, or 10 years if prosecuted summarily. It requires reporting to police at set times and when details change.
- DNA order and other prohibitions. A DNA order is commonly made. Under section 161, in cases involving young victims, a court may limit the person’s presence near parks, schools and internet use. A weapons prohibition may also apply in some cases.
Beyond these formal steps, a finding of guilt can affect employment, professional licences, travel and immigration status. Non-citizens must raise their status with their lawyer immediately.
Looking After Your Life While the Case Runs
These files are slow and heavy. A few practical steps can help:
- Keep your world small. Tell only those who truly need to know. Do not discuss the case on social media or in group chats, since witnesses or friends of the complainant may see it.
- Plan for work. If your employer asks, check with your lawyer before you respond. Some roles involve a duty to report charges to a licensing body.
- Consider a family lawyer. If you share children or a home, a no-contact condition affects parenting right away. Some variations can be requested through your lawyer.
- Look after your health. Speak with a doctor or counsellor. Counselling notes may be more private than a chat with a friend, who could be subpoenaed, but ask your lawyer if you have concerns.
For more about our work, see our criminal law page, or contact the office if you have been contacted by police. Early advice cannot predict the result, but it can stop an avoidable error from becoming part of the case.