Frequently Asked Questions About Sexual Assault Charges

Being accused of sexual assault can have immediate and serious consequences. An allegation can lead to a police investigation, arrest, restrictive release conditions, criminal prosecution and significant damage to a person’s reputation before the case has been decided.

Sexual assault cases can also be legally complex. Questions frequently arise about consent, what was communicated between the people involved, conflicting accounts of the same event, text messages, prior relationships and what the Crown can actually prove beyond a reasonable doubt.

If you are under investigation or have been charged with sexual assault, obtaining legal advice before speaking with police or making decisions about your case can be important.

De Boyrie Law represents individuals accused of sexual assault and other sexual offences.

Call (647) 931-0248 to schedule a free consultation about a sexual assault allegation.

What Is Sexual Assault?

Sexual assault is an assault committed in circumstances of a sexual nature. The Criminal Code provisions governing assault apply to sexual assault, while sections 271, 272 and 273 address different levels of sexual assault offences.

A sexual assault allegation can involve a wide range of conduct. It does not necessarily require intercourse or physical injury. 

In many cases, one of the central legal issues is whether the sexual activity occurred without the complainant’s consent. Under section 273.1 of the Criminal Code, consent means the voluntary agreement of the complainant to engage in the sexual activity in question. Consent must be present at the time the sexual activity occurs.

What Should I Do If I Am Accused of Sexual Assault?

Take the allegation seriously, even if you believe it is false or based on a misunderstanding. Avoid confronting the complainant or attempting to persuade them to withdraw the allegation. You should also preserve potentially relevant evidence, including:

• text messages;
• emails;
• social media communications;
• photographs;
• videos;
• dating-app communications;
• call records;
• receipts;
• location information; and
• names of people who may have relevant information.

Do not delete or modify communications because you think they look unfavourable. If police want to speak with you, obtaining legal advice before providing a statement can help you understand your rights and the potential consequences of what you say.

Should I Speak to Police If I Am Accused of Sexual Assault?

You should understand your legal rights before deciding whether to provide a statement. Anything you voluntarily say to police may become evidence in the investigation or prosecution. Someone who believes they can quickly “clear things up” may unintentionally provide information that becomes important to the Crown’s case.

If you have been arrested or detained, you have the right to retain and instruct counsel without delay. Speaking with a criminal defence lawyer before answering questions can help you understand your position and make an informed decision about whether to provide a statement.

Can Police Charge Me Based Only on Someone’s Allegation?

A sexual assault investigation does not necessarily require physical evidence, video footage or an independent eyewitness before a charge can be laid.

Some sexual assault cases ultimately depend largely on the testimony of the complainant and the accused. That does not eliminate the Crown’s burden of proof. If the case proceeds to trial, the prosecution must still prove the offence beyond a reasonable doubt. Where two people provide different accounts of what happened, issues involving credibility and reliability can become extremely important.

What Does the Crown Have to Prove in a Sexual Assault Case?

The Crown must prove each required element of the offence beyond a reasonable doubt. The precise elements depend on the charge and circumstances, but sexual assault cases commonly involve questions such as:

• whether physical contact occurred;
• whether the contact was intentional;
• whether the circumstances gave the contact a sexual character;
• whether the complainant consented to the sexual activity in question; and
• what the accused knew or believed regarding consent.

The defence strategy depends on which of these issues are actually disputed. For example, one case may involve a complete denial that the sexual activity occurred. Another may involve acknowledged sexual activity but disagreement about whether it was consensual.

What Does Consent Mean in a Sexual Assault Case?

Consent is specifically defined in section 273.1 of the Criminal Code as the complainant’s voluntary agreement to engage in the sexual activity in question. 

Consent must exist at the time the sexual activity takes place.

There are also circumstances in which the law says consent is not obtained. For example, the Criminal Code provides that consent is not obtained where the complainant is unconscious. It also addresses situations involving abuse of trust, power or authority, agreement expressed by another person, and circumstances where a complainant expresses through words or conduct that they do not agree to engage in or continue the sexual activity.

Consent is therefore assessed in relation to the specific sexual activity and circumstances alleged.

Does Consent to One Sexual Act Mean Consent to Everything?

No. Consent relates to the particular sexual activity in question. Agreement to one form of sexual activity does not automatically establish agreement to another.

Similarly, consent can be withdrawn. The fact that two people had previously engaged in consensual sexual activity does not by itself establish consent on a later occasion.

The defence must focus on the circumstances surrounding the specific allegation.

What If I Honestly Believed the Complainant Consented?

The law recognizes a potential issue involving an accused person’s belief in communicated consent, but there are important limitations.

Section 273.2 of the Criminal Code prevents reliance on a belief in consent in a number of circumstances. For example, a belief cannot provide a defence where it arose from self-induced intoxication, recklessness or wilful blindness.

The Criminal Code also requires consideration of whether the accused took reasonable steps, in the circumstances known to them at the time, to determine that the complainant was consenting. This is a legally complex area. It is not enough to simply say, “I thought they consented.” The words, conduct and circumstances surrounding the interaction need to be examined carefully.

Does Silence Mean Consent?

No. Consent requires voluntary agreement to the sexual activity in question. The absence of resistance should not automatically be treated as consent. What was said and done before and during the sexual activity can therefore become important evidence.

What If We Were Dating or in a Relationship?

A previous or ongoing relationship does not automatically establish consent.

Spouses, dating partners and people who have previously had consensual sexual relations can still be involved in a sexual assault allegation. At the same time, the history between the parties may sometimes provide relevant context.

Depending on the case, communications between the parties before and after the alleged incident may become important evidence. The legal issue remains whether the complainant voluntarily agreed to the sexual activity in question at the relevant time.

Can Text Messages Help Defend a Sexual Assault Charge?

Potentially. Text messages and other electronic communications can be extremely important in some sexual assault cases. They may provide evidence concerning:

• the relationship between the parties;
• plans before the alleged incident;
• communications immediately afterwards;
• descriptions of what occurred;
• inconsistencies in later accounts;
• the timing of events; or
• other relevant circumstances.

However, sexual communications or evidence of previous sexual activity are subject to important evidentiary rules. They cannot simply be introduced for any purpose the defence chooses.

Section 276 of the Criminal Code places significant restrictions on the use of evidence concerning a complainant’s other sexual activity, and applications may be required before certain evidence can be admitted. This is why electronic evidence should be preserved and reviewed by defence counsel rather than posted publicly or selectively disclosed.

Can Previous Sexual Activity With the Complainant Be Used as Evidence?

Sometimes, but strict rules apply. Canadian law prohibits using evidence of a complainant’s previous sexual activity to support certain prohibited assumptions, including the idea that a person was more likely to have consented because they had engaged in sexual activity before.

In some circumstances, specific evidence relating to other sexual activity may be relevant for another legitimate purpose. The defence may then be required to bring an application asking the court to determine whether that evidence is admissible.

Previous sexual activity should therefore never be assumed to automatically establish consent.

What If the Allegation Is False?

A false allegation can be defended like any other criminal allegation by examining the evidence and testing whether the Crown can prove the charge beyond a reasonable doubt. Depending on the case, relevant evidence may include:

• inconsistencies between statements;
• text messages;
• surveillance footage;
• independent witnesses;
• photographs;
• electronic records;
• timelines;
• location information; and
• conduct or communications surrounding the allegation.

A defence should be based on evidence rather than simply attacking the complainant personally. Credibility and reliability are legitimate issues in a criminal trial, but they must be assessed in relation to the actual evidence.

What If I Have a Different Memory of What Happened?

Sexual assault cases can involve two people who remember an encounter very differently. That does not automatically establish which version is true. The defence can compare each account against objective evidence and prior statements. Relevant questions may include:

• Has either person’s account changed?
• Are the details internally consistent?
• Do messages or other communications support or contradict an account?
• Are there independent witnesses?
• Does surveillance or location evidence establish the timing?
• Are important details inconsistent with objective evidence?

Ultimately, the Crown must prove the charge beyond a reasonable doubt.

What Are Possible Defences to Sexual Assault?

The appropriate defence depends entirely on the allegations and evidence. Potential issues can include:

The Alleged Sexual Contact Did Not Occur

The accused may deny that the alleged sexual activity happened. In that situation, the case may depend heavily on credibility, reliability and supporting evidence.

The Sexual Activity Was Consensual

The accused may acknowledge the sexual activity but maintain that the complainant voluntarily agreed to it. The defence must examine what was communicated and the circumstances surrounding the interaction.

Honest but Mistaken Belief in Communicated Consent

In some circumstances, the accused may argue that they honestly believed the complainant communicated consent. Strict legal requirements apply, including the reasonable-steps requirement and the restrictions contained in section 273.2.

Mistaken Identity

In some cases, the question may be whether the accused was actually the person who committed the alleged offence.Identification evidence can potentially be challenged where circumstances make identification uncertain.

Reasonable Doubt Based on Credibility or Reliability

The Crown’s evidence may contain inconsistencies, contradictions or reliability problems that prevent the prosecution from proving the charge beyond a reasonable doubt.

Charter Issues

Police conduct can also become relevant. Depending on the investigation, issues may arise concerning detention, searches, seizures, access to counsel or statements made to police. If Charter rights were violated, the defence can determine whether an application or remedy is available.

Does Intoxication Mean Someone Cannot Consent?

Intoxication and consent require careful legal analysis. The Criminal Code expressly states that no consent is obtained where the complainant is unconscious.

Depending on the degree of impairment and circumstances, capacity to consent may also become an issue. The law does not treat every consumption of alcohol as automatically eliminating the ability to consent.

The evidence regarding the complainant’s level of awareness, behaviour, memory and ability to make a voluntary agreement may therefore become relevant depending on the case. An accused person’s self-induced intoxication, however, cannot be relied upon as the basis for a mistaken belief that the complainant consented.

Can I Be Charged If Both of Us Were Drinking?

Yes. The fact that both people consumed alcohol does not prevent a sexual assault charge. Alcohol can nevertheless make the evidence more complicated. Witnesses may have incomplete memories, timelines may become disputed and questions about capacity or communicated consent can arise. The circumstances must be assessed individually.

What If the Complainant Contacted Me After the Alleged Assault?

Preserve the communications. Contact after an alleged sexual assault can potentially be relevant evidence, but its significance depends on what was communicated and the broader circumstances. It should not automatically be assumed that continued communication proves an allegation is false.

If you have been given a no-contact condition, you must follow that condition regardless of whether the complainant contacts you first. Do not respond unless you have confirmed that doing so is legally permitted.

Should I Delete Messages or Social Media Posts?

No. Do not destroy, alter or selectively edit evidence connected to an allegation. Preserve relevant communications in their original form. That can include text messages, direct messages, emails, photographs, videos and dating-app conversations. A defence lawyer can determine what may be relevant and how it can lawfully be used.

Can I Contact the Complainant to Explain What Happened?

Generally, this is a bad idea once an allegation or investigation exists. If you have release conditions prohibiting contact, contacting the complainant may itself result in additional criminal charges laid against you.

Even where no formal no-contact order exists, communications intended to “clear things up” can potentially become evidence. Do not pressure, threaten or attempt to influence a complainant or witness.

Obtain legal advice before making any decision.

What Happens After I Am Charged With Sexual Assault?

The precise process depends on the circumstances, but it can include:

1. arrest or release by police;
2. a bail hearing where necessary;
3. release conditions;
4. court appearances;
5. disclosure of the Crown’s evidence;
6. review of the evidence by defence counsel;
7. Crown and defence discussions;
8. pre-trial applications;
9. trial, where the charge remains contested; and
10. sentencing if there is a conviction.

Not every sexual assault charge proceeds to trial. The appropriate course depends on the strength of the evidence, available defences and any resolution discussions with the Crown.

Will I Be Ordered Not to Contact the Complainant?

Yes. People charged with sexual assault are frequently subject to release conditions restricting contact with the complainant. Conditions may also restrict attendance at certain homes, workplaces, schools or other locations. These conditions apply unless and until they are formally changed.

Even if the complainant wants contact, an accused person should not violate a court or release order. A lawyer can advise whether a change to the conditions can be requested.

Will My Sexual Assault Case Go to Trial?

It may. Some charges are withdrawn or otherwise resolved before trial. Other cases proceed to trial because the accused disputes the allegation and no acceptable resolution is available. Sexual assault cases frequently involve significant factual and credibility disputes, which can make trial necessary.

The decision about how to proceed should be made after reviewing the disclosure and understanding the available defence.

Will the Complainant Have to Testify?

If a sexual assault case proceeds to trial and the Crown relies on the complainant’s account to prove the allegation, the complainant will commonly provide evidence. 

The defence ordinarily has the opportunity to cross-examine Crown witnesses. However, sexual offence proceedings are subject to specific evidentiary and procedural rules designed to govern issues such as sexual history evidence, private records and the manner in which certain evidence can be introduced.

A sexual assault trial therefore requires careful preparation.

Can the Complainant Drop the Charge?

A complainant does not control whether a criminal prosecution continues after a charge has been laid. The Crown is responsible for prosecuting the case. A complainant can communicate that they no longer want the prosecution to continue, but that does not automatically cause the charge to be withdrawn.

The Crown will decide whether the prosecution should proceed based on the applicable prosecution standards and available evidence.

Can Sexual Assault Charges Be Withdrawn?

Potentially. After reviewing the evidence, defence counsel may identify problems involving credibility, admissibility, consent, identification, Charter issues or whether the Crown can prove all elements of the offence. These issues can sometimes be raised with the Crown before trial.

Whether a charge will be withdrawn depends on the circumstances and cannot be guaranteed. Other cases may proceed to trial and result in an acquittal if the Crown cannot prove the allegation beyond a reasonable doubt.

What Are the Penalties for Sexual Assault?

Sexual assault under section 271 of the Criminal Code is a hybrid offence. For an adult complainant, if the Crown proceeds by indictment, the maximum sentence is 10 years’ imprisonment. If the complainant is under 16, different and more serious sentencing provisions apply. 

More serious sexual assault offences are addressed separately. Section 272 covers circumstances including sexual assault involving a weapon, threats to a third party, bodily harm, choking, suffocation or strangulation, or participation with another person.

Section 273 addresses aggravated sexual assault, which involves wounding, maiming, disfiguring or endangering the life of the complainant.

The potential sentence depends heavily on the specific charge and circumstances.

What Other Consequences Can Follow a Sexual Assault Conviction?

The consequences of conviction can extend beyond imprisonment or other sentencing orders. Depending on the offence and circumstances, consequences can include:

• a criminal record;
• probation;
• restrictions on weapons;
• orders restricting contact or attendance at locations;
• employment consequences;
• professional licensing consequences;
• immigration consequences;
• travel difficulties; and
• sex offender registration requirements where applicable.

Because the consequences can be substantial, the defence should consider both the immediate criminal case and its potential long-term effects.

Can I Be Added to the Sex Offender Registry?

Sexual assault under section 271 is among the offences addressed by Canada’s sex offender registration legislation. Whether registration results, how long obligations last and what requirements apply depend on the conviction and applicable law. This is an important potential consequence to discuss with defence counsel before making decisions about a sexual offence case.

Can a Sexual Assault Charge Affect My Job Before Trial?

Potentially. An allegation or charge can create employment consequences even before the criminal case has been decided, particularly where employment involves vulnerable persons, professional regulation, security clearances or workplace allegations. However, the effect depends heavily on the employer, profession and type of criminal background check being conducted.

An accused person should obtain advice before making unnecessary disclosures or assumptions about what an employer must be told.

What Evidence Should I Give My Lawyer?

Provide your lawyer with potentially relevant information even if you are uncertain whether it helps your case. This can include:

• a detailed timeline;
• text messages;
• emails;
• dating-app conversations;
• photographs;
• videos;
• call logs;
• names of potential witnesses;
• receipts;
• ride-share records;
• location records;
• information about surveillance cameras; and
• communications before and after the alleged incident.

Do not alter the evidence before providing it. Context can be important, and your lawyer should be able to review the complete material.

How Can a Sexual Assault Lawyer Help?

A sexual assault defence lawyer can assess both the factual allegations and the specific legal rules governing sexual offence prosecutions. At De Boyrie Law, defending a sexual assault allegation can involve:

• advising you before a police interview;
• reviewing the allegations;
• addressing bail and release conditions;
• obtaining and reviewing disclosure;
• examining statements made by the complainant and other witnesses;
• preserving electronic and video evidence;
• identifying inconsistencies or reliability issues;
• assessing consent and communicated consent;
• determining whether evidentiary applications are required;
• examining police conduct for Charter issues;
• communicating with the Crown;
• preparing cross-examination and trial strategy; and
• defending the charge at trial where necessary.

The appropriate strategy depends on the evidence rather than assumptions about how a sexual assault case should be defended.

When Should I Contact a Sexual Assault Lawyer?

You do not necessarily need to wait until a charge has been laid. If police have contacted you regarding a sexual assault allegation, asked you to attend an interview or indicated that you are under investigation, obtaining legal advice before responding can be imperative.

If you have already been charged, a lawyer can review your release conditions, begin obtaining disclosure and identify evidence that should be preserved. Early advice is particularly useful where electronic communications, surveillance footage or other time-sensitive evidence may exist.

Speak With a Sexual Assault Defence Lawyer

Being accused of sexual assault is not the same as being convicted. The Crown must prove the charge beyond a reasonable doubt, and the defence should carefully examine the allegation, the evidence surrounding consent, witness credibility, electronic communications and any other relevant circumstances.

De Boyrie Law represents individuals facing sexual assault allegations and other sexual offence charges.

Call (647) 931-0248 or request a free consultation to discuss your case.