Aggravated Sexual Assault Lawyers in Kelowna
What is Aggravated Sexual Assault?
Aggravated sexual assault is a charge classified under “Offences Against the Person and Reputation” in the Criminal Code of Canada (the “Code”). This is a serious sexual assault offence, with maximum punishments higher than those of a common sexual assault, including life imprisonment.
In order to be convicted, the Crown must prove beyond a reasonable doubt that you committed a sexual assault by touching someone in a sexual nature without their consent.
Once that is proven, the Crown must also prove beyond a reasonable doubt that the sexual assault meets the test for aggravated assault.
Assault is considered “aggravated” when it:
- Disfigures; or
- Endangers the life of the complainant.
The Crown may not have to prove that you intended to wound, maim or disfigure someone. If the injury caused was foreseeable, and you took the actions despite being aware of the potential consequences, you can be convicted of the crime.
The relevant provision for aggravated sexual assault in the Code is:
Aggravated sexual assault
273 (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.
This offence has often been described as a “gender-based” offence, and in the recent “me too” era, there has been a mounting social movement to believe the complainant. For these, and many other reasons, aggravated sexual assault allegations have become some of the most stigmatizing offences we defend, and it can often feel like you are presumed guilty in the court of public opinion.
Aggravated sexual assault charges also commonly arise out of domestic situations. If your aggravated sexual assault charge involves a past or present romantic partner or a family member, please see our domestic violence section for more context.
Investigation of Aggravated Sexual Assault Charges in Kelowna
An investigation of an aggravated sexual assault allegation in Kelowna is typically initiated by the alleged victim (or relative or witness). They contact the local police and report it. The police will then request a written statement from the complainant and any witnesses, and launch an investigation.
Because aggravated sexual assault is a violent offence, it requires a thorough police investigation. Police will typically interview all witnesses to the offence, review surveillance videos, seize any weapons, photograph the scene, and obtain medical documents to prove the type and extent of the alleged victim’s injuries. A forensic examination, or “sex assault kit,” is frequently conducted in order to gather DNA evidence, as well as evidence to prove the type and extent of the alleged victim’s injuries.
After the police have gathered their evidence, they will arrest you if they believe you are the perpetrator. If you are not present at the scene, police will track you down or issue a warrant for your arrest. The police may obtain a warrant to obtain DNA evidence from you to determine if it is a match to DNA found at the scene or during the complainant’s “sex assault kit.” Sex assault kits are commonly completed by nurses on the complainant at a hospital following allegations of sexual assault.
Even if a complainant makes an allegation of aggravated sexual assault that they later withdraw, it is up to the Crown Prosecutor to decide whether to pursue the charges against you. The complainant can be subpoenaed (ordered to attend court), even against their wishes.
After you have been charged, police will provide a package with all the evidence they collected, known as the “disclosure package,” to the Crown Prosecutor. You will have the right to access this disclosure package to see the evidence against you. Once you retain one of our lawyers, we will assist you in obtaining the disclosure package, and we will review it with you to assess the strengths and weaknesses of the Crown’s case, as well as any legal defences that may be available to you.
Bail Process and Conditions for Aggravated Sexual Assault Charges in Kelowna
How do I get myself or a loved one out on bail for aggravated sexual assault charges in Kelowna?
When charged with aggravated sexual assault, police may release you at the scene. Police will provide you with an Appearance Notice document outlining your charges, and any appearances you must make.
If the police feel that your circumstances require more onerous conditions they may require you to sign an Undertaking.
This document will outline your charges and include any specific conditions you must follow, including being prohibited from:
- Contacting the alleged victim;
- Leaving the province; and/or
- Alcohol consumption.
Alternatively, a formal bail hearing may be required to secure your release, particularly if you have a criminal record, or if the allegations are more serious (such as arising out of a domestic situation or involving children).
The bail hearing must be held within 24 hours, a period that starts from the moment of arrest or detention rather than when you are brought to the district office or courthouse.
On a weekday, you will be transferred from the district office to the Kelowna Courthouse for your bail hearing.
The address is as follows:
1355 Water Street
Kelowna BC V1Y 9R3
Tel: (250) 470-6900
If you are arrested after approximately 3 p.m., you will be held at the detachment until the following morning, at which time you will be transported to the Courthouse for your bail hearing. Your hearing will be conducted in front of a Provincial Court Judge.
If you are arrested on Friday after approximately 3 p.m., or if you are arrested on a weekend, your bail hearing will be conducted at the detachment via telephone with a Justice of the Peace from the Justice Centre.
Loved ones are not able to contact you while you are detained. The police will not release any information to friends or family due to privacy laws. Your lawyer is the only person allowed to contact you. Once the police have verified your lawyer’s details, they will pass on information about your whereabouts, if requested.
Because of these difficulties, while you are held in custody, it is best to appoint a competent defence lawyer as soon as possible to manage the legal processes and communicate with loved ones. After an arrest, the police must provide you with the opportunity to call a lawyer in private. If you choose to exercise this right, the police must stop questioning you until you have done so.
Once you retain one of our experienced criminal defence lawyers, we will begin working to secure your release on bail.
We will immediately do the following:
- Call the district office where you are being held, or the Kelowna Courthouse if you have been transported, and speak to you.
- Contact the prosecutor assigned to the bail hearing to start negotiating your release.
- Order and secure a copy of the police information package that details the allegations against you in advance of the bail hearing. This allows the lawyer to make meaningful representations to the court about why you should be released on bail.
- Conduct either an in-person or teleconference bail hearing to secure your release.
When you attend your bail hearing, the judge will consider:
- Is detention necessary to secure your attendance in court?
- Is detention necessary to protect the public from a substantial risk of re-offence?
- Is detention necessary in all the circumstances to maintain confidence in the administration of justice?
Although it is unlikely that you will be denied bail for this type of charge, tight restrictions may nevertheless be applied to your release.
Rest assured, we will work to not only secure your release but also to ensure the least restrictive set of bail conditions (including the minimum cash deposit).
Our lawyers are often successful at persuading the prosecutor in charge of bail to let our clients out. If we can’t convince the Crown, we can conduct a formal bail hearing and work to convince the court. Even if you are ultimately detained, we can appeal that decision on very short notice through a bail review, which is conducted at the Supreme Court of British Columbia.
Where can I pay for bail for aggravated sexual assault charges in Kelowna?
If you or a loved one are charged with aggravated sexual assault in Kelowna and granted bail, you may be required to provide a cash deposit to secure release. The cash deposit can be paid at any courthouse in British Columbia. Even if you live in Vancouver, you can pay bail there for someone detained in Kelowna.
The Kelowna court registry is open from 8:30 – 4:30, Monday to Friday.
The contact details of the registry office at the Kelowna Courthouse are as follows:
1355 Water Street
Kelowna BC V1Y 9R3
Tel: (250) 470-6900
To pay your own bail, you can make a payment after your hearing, assuming you have sufficient funds with you to do so.
How do I change my release conditions for aggravated sexual assault charges in Kelowna?
Release on bail with aggravated sexual assault charges will almost always require a surety, cash, or no-cash deposit.
Furthermore, you can expect tight restrictions, including requirements to refrain from:
- Interacting with the alleged victim;
- Attending the alleged victim’s home or place of work;
- Staying out beyond a certain time (i.e. curfew);
- Breaking any laws;
- Using drugs or alcohol;
- Possessing weapons;
- Visiting certain places; and/or
Some of these conditions can prove to be difficult, especially where an alleged victim or witness is a family member or a child. If you share a home with the alleged victim, you are unlikely to be allowed to return home until the matter is addressed again in court. This holds true even if you are paying the rent, are on the lease, or even own the home. A competent defence lawyer will address this challenge immediately.
The judge may also impose some additional conditions such as:
- Residing where approved;
- Reporting to probation;
- Attending counselling; and/or
- Maintaining or seeking employment.
A variety of factors will be considered when determining your precise restrictions, including:
- Your criminal history;
- Your physical and mental condition;
- Your history of drug/alcohol usage;
- The nature of the alleged aggravated sexual assault;
- The likelihood that you will flee;
- Whether you have stable employment;
- Whether you have stable living arrangements; and
- Whether you have ties to the community.
If you have already been released, at least for the short term, it is critical that you arrange to abide by your conditions until they can be changed. Breaching the terms of your release can result in further charges or a revocation of your bail, as well as forfeiture of any cash paid to secure your release. It is important to take these conditions seriously.
Once the matter is in court, we can work with the Crown Prosecutor to alter your conditions. This includes adding exceptions to some of the conditions or eliminating them altogether.
If your court date is far away and you cannot wait until then, we can arrange to have the matter dealt with sooner. It is always our first priority to stabilize your release conditions. That way, you will not feel pressured to plead guilty because of the restrictive terms of your release. Once the conditions are manageable and minimally intrusive to your daily routine, we can focus 100% of our attention on defending you.
Penalties for Aggravated Sexual Assault Charges in Kelowna
The penalties for aggravated sexual assault offences can be devastating. Sentences for aggravated sexual assault, particularly if it includes oral sex or penetration, include significant jail sentences often several years in length. Punishments vary depending on the individual circumstances of the offender and the severity of the offence. Aggravated sexual assault is an indictable offence, meaning punishments are more severe.
For a common aggravated sexual assault conviction, you can expect:
- Up to life imprisonment;
- If the complainant is under the age of 16 years, a minimum punishment of imprisonment for a term of five years, up to life imprisonment;
- If an unrestricted firearm was used in the commission of the office, a minimum punishment of imprisonment for a term of four years, up to life imprisonment;
- If a restricted firearm was used in the commission of the offence, or any firearm was used in the commission of the offence and the offence related to a criminal organization, a minimum punishment of five years imprisonment up to life imprisonment.
Beyond any immediate jail and/or probation sentence you receive, you will also be ordered to register with the National Sex Offender Registry in accordance with the National Sexual Offender Information Registry Act (SOIRA).
As a registered sex offender, you will have to provide the police personal information including:
- Where you live;
- What you drive; and
- What you do for work.
A conviction for aggravated sexual assault will result in a mandatory minimum 10-year SOIRA order for just one offence, which can have significant and overwhelming consequences for your future.
Under a SOIRA order you are required to report to the Sexual Registry anytime you:
- Change your address or place of residence;
- Change employment or volunteer positions; or
- Travel internationally for more than 7 days.
Furthermore, your personal information will remain in the Sexual Registry database indefinitely.
Following a conviction for aggravated sexual assault, you may have trouble securing employment in the field of your choice. This is especially the case for roles that require interacting with children, the elderly, or other vulnerable sectors of society. The lifelong criminal record that results from a conviction can also hinder immigration, travel, and cause child custody issues.
For these reasons, even if you intend on accepting responsibility for this type of offence, it is critical to explore your options and consider all possible penalties.
Rest assured, our lawyers will work hard to defend you so that you are not saddled with the consequences of a criminal conviction for aggravated sexual assault. Even if the deck is stacked against you, we can canvass a range of sentencing options with the prosecutor to give you the best result possible. To learn more about potential non-criminal resolutions, please visit our resolutions page, or read our FAQ on resolutions and other sentencing options.
Defending Aggravated Sexual Assault Charges in Kelowna
What are the best defences to aggravated sexual assault charges in Kelowna?
With aggravated sexual assault charges, the defences that may be available to you depend on the facts of your case.
In general, the best defences are:
- Factual Innocence: This is usually the strongest defence because the facts and the evidence do not support you being there, applying force to the complainant, lack of consent, or other basic elements of the offence. This could include:
- Identity: In some circumstances, you may be able to raise an identity defence. For example, authorities could have made a mistake in identifying you as the perpetrator. In order to effectively raise this defence, you may need corroborative evidence, such as an alibi to where you were at the time of the offence.
- No Sexual Contact: If you can challenge the mental or physical elements of the aggravated sexual assault, then you cannot be convicted. For example, if you did not touch the complainant in a sexual context, you cannot be convicted of aggravated sexual assault.
- Consent: If the complainant consented to the sexual touching you cannot be convicted of aggravated sexual assault. It is important to remember that the complainant must have consented to all sexual touching at the time that the touching took place. Consent must be express – it cannot be implied. Consent cannot be granted if it is obtained by force, threats, fear, fraud, or the exercise of authority. It is important to note as well that you cannot consent to the infliction of intentional bodily harm.
- Honest but Mistaken Belief in Consent: If the complainant did not consent to the sexual touching, but you honestly subjectively believed that the complainant was consenting to the sexual contact, you cannot be convicted of aggravated sexual assault. This defence is a form of “mistake of fact.” There must be evidence of ambiguity or equivocality which shows that the mistaken belief was not based on wilful blindness or recklessness as to the absence of consent.
- Violation of Constitutional Rights: The Canadian Charter of Rights and Freedoms (the “Charter”) sets out your rights before and after your arrest. If the police fail to abide by these rights, it could aid in your defence.
While the Crown must prove the elements of the offence beyond a reasonable doubt, you may bear some responsibility in raising certain defences at trial. The burden of proof remains high for this kind of prosecution. This means that there are many successful defence strategies that our experienced defence lawyers can take, depending on the circumstances of your case.
Even if you believe that you will be found guilty, it is important that you obtain a legal opinion about defences that may be available to you.
The availability and strength of any defence depends entirely on the specific facts of your case. Our lawyers have significant experience assessing the availability and strengths of various potential defences in aggravated sexual assault cases, as well as presenting any and all available defences to the court at trial.
How can I help defend aggravated sexual assault charges in Kelowna?
If you have been charged with aggravated sexual assault in Kelowna, the following can help your lawyer build a strong defence:
- Provide your lawyer with a statement about what happened;
- Collect and maintain all documents and records about the event;
- Gather a list of witnesses that may support your version of events; and
- Log any relevant texts, emails, phone calls or photographic evidence.
As soon as you are released on bail, you should start to gather any information that may be of use to your lawyer. What information is relevant will depend on the facts in your case. If you are uncertain what information to collect, you should contact one of our lawyers immediately to create a plan of action for gathering information.
To be truly proactive about the matter, consider doing the following:
- Secure proof of employment;
- Secure reference letters;
- Enroll in counselling (anger management/substance abuse/parenting);
- Secure a record of prescriptions; and
- Secure a record of any mental health conditions you suffer from.
These steps can be very helpful for building an effective defence (or convincing the prosecutor to drop the charges altogether).
What can a lawyer do to help me defend against aggravated sexual assault charges in Kelowna?
As we start preparing your defence by examining police actions and the evidence against you, there are certain defence strategies that can be used to aid your cause, including:
- Assembling documents, photographs, texts, etc. that contradict the allegation and support your defence;
- Gathering evidence from witnesses that support your version of events;
- Identifying mistakes in the actions of the police, such as Charter breaches;
- Uncovering administrative/systemic errors, such as “Jordan delay,” non-disclosure, lost or destroyed evidence, etc.; and
- Finding weaknesses or “holes” in the Crown’s case that may make it difficult or Impossible for them to establish the elements of the offence.
In the case of aggravated sexual assault defences, there are numerous other considerations that your lawyer will need to consider that are unique to this kind of charge. Rest assured, we are up to the challenge.
Below are a few notable cases dealing with various aspects of aggravated sexual assault charges:
In R v Ewanchuk,  1 SCR 330 the Supreme Court of Canada (“SCC”) considered the elements of the offence in sexual assault prosecutions. The court importantly determined that there does not exist a defence of “implied consent” in sexual assault prosecutions, as consent must be demonstrated to have subjectively existed in the mind of the complainant at the time of the sexual touching.
In R v Chase,  2 S.C.R. 293 the SCC considered the question of what constitutes sexual touching for the purpose of a sexual assault allegation. The court determined that the sexual nature of the touching is determined by considering whether objectively, in light of all the circumstances, the sexual context of the assault would be visible to a reasonable observer. The court importantly noted that it is the context of the touching, not the touching of a specific body part, that determines whether the assault was sexual in nature.
In R v Barton, 2019 SCC 33 (“Barton”) the SCC provided a comprehensive and sweeping treatise on the law of sexual assault in Canada. Barton provides the most up to date analysis and guidance with respect to the prosecution and defence of a sexual allegation.
In R v Godin,  2 SCR 3 the SCC determined that to make out the charge of aggravated assault, the Crown Prosecutor must establish that the accused could have reasonably foreseen that bodily harm would occur as a result of the assault. It is not necessary for the Crown Prosecutor to prove that the accused intended to wound, maim, or disfigure the victim.
Most of the information above relates to simple aggravated sexual assault cases, which can still be complex and fact-specific. The circumstances of your case will likely further complicate the matter.
We have tried our best to provide a general outline of what you can expect if you find yourself in this situation, but this is just the tip of the iceberg.
To learn more about how we can help, please contact our team of aggravated sexual assault lawyers. We will conduct a thorough review of your situation and tailor a precise strategy that targets your successful defence.
Aggravated Sexual Offences FAQs
- What is sexual assault?
- What does consent mean?
- What is child luring?
- What is a child pornography offence?
- What is voyeurism?
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