Sexual assault is a serious charge that may carry serious consequences upon conviction.
If you have been charged with sexual assault, it is important to hire an experienced sexual assault lawyer in Ontario who can walk you through the court process, speak with the Crown to negotiate the best possible outcome on your behalf, and build a strong defence if the case goes to trial.
The Investigation and Reporting Process
Reporting a Sexual Assault
In Ontario, reports of sexual assault will be attended by a uniformed police officer. This officer will be responsible for assessing the complainant’s physical and emotional condition, requesting an ambulance if necessary, securing the scene, and preserving physical evidence.
The complainant is often encouraged to preserve evidence by avoiding washing. Officers will provide information on the Sexual Assault Examination Kit (SAEK) and its importance to the investigation. An interview will be conducted in a private setting to gather basic details about the incident. Due to the serious and sensitive nature of the crime, the police will take a gentler and more sensitive approach to the investigation.
What to Expect During the Investigation
In Ontario, an investigation into sexual assault typically begins following a report to police by a complainant.
During the investigation, police collect evidence such as surveillance footage, witness statements, electronic communication (such as texts and emails), and other digital evidence. While police may interview the accused person before laying charges, often the first time the accused is aware of the investigation is when they receive a phone call from police informing them about the charges.
The First Court Appearance
What to Expect at the First Court Appearance
If you have been charged with sexual assault in Ontario, your first court appearance (outside of bail court) will be in case management court, often before a Justice of the Peace.
No pleas or preliminary inquiries take place in case management court. Rather, the first appearance addresses administrative issues such as disclosure, whether you will be self-represented, have applied for legal aid or hired a lawyer, and whether a Crown or a judicial pre-trial have been scheduled.
Disclosure is the information that the Crown has in the case against you, such as police reports, witness statements, forensic reports, surveillance footage, and the initial sentencing position.
Disclosure may not be fully available for the first court appearance. Getting disclosure is an ongoing process, and the Crown must share information as it becomes available.
If you have hired a lawyer, the lawyer may appear in case management court on your behalf. However, you should always attend court unless told otherwise by your lawyer. If you do not have a lawyer, duty counsel may be available to help you in the courtroom.
Understanding the Role of the Justice of the Peace
In case management court, the Justice of the Peace will want an update on the status of your case, including disclosure, representation, and applications for pre-trials. At the end of each appearance in case management court, the Justice of the Peace will provide both parties with a date and time for the next appearance, along with what both the Crown and defence must do before that appearance.
If you fail to appear at the next date, the Justice of the Peace may issue a warrant for your arrest, and you may be further charged with failure to appear in court.
The Pre-Trial Stage
Crown Pre-Trial
The Crown pre-trial occurs outside of the courtroom. It is the first chance for you to talk to the Crown about the case. If you have hired a lawyer, the lawyer will do this on your behalf.
The purpose of the Crown pre-trial is to ensure that there is proper disclosure, to discuss different ways to resolve your case, and to negotiate what sentence the Crown is asking for if you decide to plead guilty.
Judicial Pre-Trial
After the Crown pre-trial, either the defence or the Crown may request a judicial pre-trial. The judicial pre-trial is similar to the Crown pre-trial, but is presided over by a judge who will help to negotiate plea deals, resolve concerns about disclosure, and possibly reduce the number and complexity of issues to be discussed in a trial.
The judge may also offer their opinion on what would be a fair outcome if the case did go to trial, based on the law and the specific circumstances of the case.
The Trial
Choosing a Trial Format
Section 271 of the Criminal Code of Canada states that sexual assault may be charged as either a summary or an indictable offence. The Crown decides how to proceed based on factors like the seriousness of the accused person’s actions and the harm caused.
If the Crown elects to proceed summarily, the trial will occur in provincial court in front of a judge alone.
If the Crown elects to proceed by indictment, you may choose the format of your trial. According to s. 536 of the Criminal Code, these options are:
- Trial in provincial court (Ontario Court of Justice) in front of a judge alone
- Trial in the Superior Court of Justice in front of a judge alone
- Trial in the Superior Court of Justice in front of a judge and jury
Some factors to consider when making the decision include: whether there are a lot of technical issues that would be more appropriately considered by a judge alone, whether the nature of the evidence would be likely to prejudice the jury against you, your own background, and whether you want a preliminary inquiry. This decision is best discussed with a lawyer.
The Trial Process
- At trial, the Crown must prove each essential element of sexual assault beyond a reasonable doubt to secure a conviction. The Crown must prove the As per R v Ewanchuk, “the actus reus of assault is unwanted sexual touching.
- The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched” (para 23). ‘Beyond a reasonable doubt’ does not require absolute certainty, but requires a significant amount of proof far beyond the civil standard of ‘balance of probabilities’.
- The Crown will begin its case by providing an opening statement which outlines the allegations and evidence to be called. The Crown will call witnesses for direct examination to present evidence in support of the Crown’s case.
- The defence will then have the opportunity to cross-examine each witness to test the reliability and accuracy of the statements as well as the credibility of the witnesses. The Crown may be entitled to re-examination if any new information is brought to light on cross-examination.
- Once the Crown finishes calling evidence, the defence may choose to call witnesses. This is your chance to testify, if you wish. This decision should be considered very carefully and discussed with your lawyer before the trial, because the Crown also has the opportunity to cross-examine the defence’s witnesses.
- In sexual assault cases, there are special rules regarding evidence, as set out in sections 276 and 278.92 of the Criminal Code. For example, questions in a sexual assault trial that put “the complainant’s lifestyle and reputation on trial” are prohibited (R. v. Osolin, para 170). This is to avoid enforcing myths and stereotypes about sexual assault victims.
- After all of the evidence has been presented, both parties will have the opportunity to make closing submissions based on the evidence in the trial. The judge or jury (depending on the format of the trial) will then render a judgment of guilty or not guilty. This judgment may not be rendered immediately. If you are found not guilty, you are free to leave that day. If you are found guilty on some or all charges, the case will proceed to sentencing, either that same day or at a later date set by the judge.
Sentencing and Possible Outcomes
Understanding Sentencing Options
Before sentencing, the judge will hold a sentence hearing where both Crown and defence may provide evidence as to what is an appropriate sentence.
Considerations include:
- the circumstances of the accused,
- the circumstances surrounding the offence,
- and any applicable minimum or maximum sentences.
Sentencing options for sexual assault in Ontario are set out in the Criminal Code of Canada.
If the Crown elected to proceed summarily, and you are found guilty of sexual assault, you may be liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months, as per s. 271(b) of the Criminal Code.
If the Crown elected to proceed by indictment, and you are found guilty of sexual assault, you may be liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year, as per s. 271(a) of the Criminal Code.
Possible Outcomes and Next Steps
Sexual assault is a serious crime that may carry serious consequences upon conviction. In addition to facing imprisonment, anyone who is found guilty of sexual assault in Ontario may be ordered to register with the Ontario Sex Offender Registry and the National Sex Offender Registry.
As soon as you have been charged with a sexual assault, you should contact a criminal defence lawyer. Prioritize a lawyer with a proven track record of successful outcomes in sexual assault cases.
An experienced criminal defence lawyer can communicate with the prosecution to try to resolve the case in your best interest and build a strong defence on your behalf if the case goes to trial.
