Toronto Sexual Assault Lawyer

What Sexual Assault Means Under the Criminal Code

Sexual assault is set out in section 271 of the Criminal Code of Canada. It is often misunderstood. The offence is not limited to intercourse. It covers any intentional application of force to another person, without that person's consent, in circumstances of a sexual nature that violate the complainant's sexual integrity. That can include touching over clothing, kissing, or grabbing. There is no separate offence of "rape" in Canadian law. It was replaced in 1983 by a graduated set of sexual assault offences.

The more serious forms are charged separately. Section 272 covers sexual assault where a weapon is used or threatened, where threats are made to a third party, where the accused is party to the offence with another person, or where bodily harm is caused. Section 273 covers aggravated sexual assault, where the complainant is wounded, maimed, disfigured, or their life is endangered. These carry substantially higher maximum penalties, and section 273 carries a maximum of life imprisonment. Related offences such as sexual interference, invitation to sexual touching, and sexual exploitation apply where the complainant is a young person.

Consent in Canadian Law

Consent is the issue in a large share of these cases, and it is defined narrowly. Section 273.1 defines consent as the voluntary agreement of the complainant to engage in the sexual activity in question. Three points follow from that definition and matter enormously in practice.

First, consent must be present at the time the activity takes place. Agreement given in advance, or a pattern of past intimacy, is not consent to what happens later. Second, consent can be withdrawn at any point, and any continuation after it is withdrawn is not consented to. Third, a person cannot consent while incapable of doing so by reason of intoxication, unconsciousness, or any other condition affecting capacity. The Supreme Court has been clear that there is no consent while a person is unconscious.

Canadian law also does not recognize a defence of implied consent. That was settled in R. v. Ewanchuk, which you can read on CanLII. What remains is a narrow defence of honest but mistaken belief in communicated consent: the accused must have believed the complainant communicated agreement by words or conduct. Section 273.2 restricts it further. It is unavailable where the belief arose from self-induced intoxication, from recklessness or wilful blindness, or where the accused did not take reasonable steps in the circumstances to ascertain consent. It is also unavailable where there was no evidence that consent was actually communicated. Whether that defence is genuinely open on a given set of facts is a question that requires careful legal analysis, not assumption.

Penalties, Elections, and the Sex Offender Registry

Sexual assault under section 271 is a hybrid offence, meaning the Crown elects to proceed summarily or by indictment. That election shapes the available maximum penalty, the trial court, and the procedural rights that follow. Proceeding by indictment exposes an accused to significantly greater jail exposure. Mandatory minimum sentences apply in certain circumstances, particularly where the complainant was under the age of 16, and several such minimums have been the subject of constitutional litigation. The Department of Justice Canada publishes general information on how these provisions operate.

A conviction also engages the Sex Offender Information Registration Act. In most cases a SOIRA order follows a conviction, requiring registration and periodic reporting for a fixed term or for life depending on the offence and the record. Following recent amendments there is limited judicial discretion in some situations, but registration should be assumed to be a realistic consequence of conviction. Ancillary orders including DNA collection, weapons prohibitions, and conditions restricting contact with children or attendance at certain places may also apply.

Section 276 and Section 278: Where Trial Experience Matters

Sexual offence trials are governed by procedural rules that exist in no other area of criminal law. Section 276, often called the rape shield provision, makes evidence of a complainant's other sexual activity presumptively inadmissible. It can never be used to suggest that a complainant is more likely to have consented or is less worthy of belief. Where such evidence is genuinely relevant to an issue at trial, counsel must bring a written application, meet notice requirements, and satisfy the judge on a voir dire that the evidence has significant probative value that is not substantially outweighed by the danger of prejudice.

A parallel regime under sections 278.1 and following governs applications for records in which the complainant has a reasonable expectation of privacy, including counselling, medical, and school records, along with a screening process for certain records already in the accused's possession. These applications are technical, they are argued in advance of trial, and they are frequently decisive. Counsel who does not run these motions regularly is at a real disadvantage. Robb MacDonald is a criminal jury trial specialist who is in court roughly five days a week, and this procedural terrain is part of his everyday practice.

How a Defence Is Built

There is no template. The defence that fits a case depends entirely on the evidence, and identifying it requires complete disclosure and a candid, detailed conversation with the client. Depending on the case, the issues may include identity, whether the alleged contact occurred at all, whether consent was communicated, an honest but mistaken belief in communicated consent where the evidence supports it, and the reliability of an account affected by intoxication, memory, or the passage of time. Inconsistencies between statements, and between statements and other evidence such as messages or location data, can bear meaningfully on reliability.

Where there is a genuine evidentiary foundation for a motive to fabricate, it can be raised, but responsibly and only where the evidence actually supports it. Delay in reporting, standing alone, does not make a complaint less credible in Canadian law, and courts have rejected the assumption that it does. Charter issues can also arise: an unlawful arrest, a breach of the right to counsel under section 10(b), or an improperly obtained statement or search may lead to the exclusion of evidence. Underlying all of it is the Crown's burden to prove every element beyond a reasonable doubt.

A Record of Results

It is uncommon for sexual assault charges to be withdrawn outright, and no lawyer can promise that outcome in any case. Robb MacDonald has achieved it. In R v. Khalandarzada, his client was charged with sexually assaulting a stranger after allegedly entering the complainant's home. Facing a strong Crown case, Robb negotiated with the Crown Attorney's office and secured the withdrawal of all sexual assault charges.

In R v. Olascoaga, the accused was charged following allegations of non-consensual sex at a party. Considered a flight risk as a foreign national, he was denied bail and spent more than a year in custody awaiting trial. Over a trial spanning roughly three months, Robb tested the Crown's evidence and identified inconsistencies in the account presented. The accused was acquitted of all charges. Further outcomes are set out on the case results page.

An acquittal is the first step to repairing one's reputation.

The Process, From Investigation to Trial

Most cases begin with a police investigation and a request that the accused attend for an interview. Arrest is usually followed by a release on an undertaking or by a contested bail hearing, often with strict conditions including no contact and residence terms. Disclosure follows, and reviewing it in full is the foundation of everything after. A preliminary inquiry is now available only for offences carrying a maximum of 14 years or more, which means it may be open on a section 272 or 273 charge but not on a straight section 271 charge. Where the matter proceeds by indictment, the accused generally elects trial by a judge of the Ontario Court of Justice, or in the Superior Court by judge alone or by judge and jury. Our judicial process guide walks through each stage, and past case results show the range of outcomes.

Consequences Beyond the Courtroom

Even before trial, a charge can affect employment, professional licensing before a regulator, immigration and permanent residence status, and the ability to travel to the United States. Bail conditions may restrict where a person can live and who they can speak to. A publication ban under section 486.4 protects the complainant's identity, and in many cases that ban also has the practical effect of limiting what can be reported about the proceeding. These consequences are real and they are why the case deserves serious, early attention rather than hope that it resolves on its own.

Speak to a Lawyer Before You Speak to Police

The single most important thing a person under investigation can do is get legal advice before any police interview. You have the right to remain silent and the right to counsel, and there is no obligation to explain, apologize, or clarify. Statements made in an attempt to be helpful frequently become the strongest evidence at trial. If police have contacted you, call before you respond.

Robb MacDonald has practised criminal defence for more than 20 years. He earned his J.D. at Queen's University in 2006, was called to the Ontario bar in 2007, trained under Edward Greenspan QC, and is a two-time provincial advocacy champion, having won both the Arnup Cup and the OTLA Cup. He is licensed by the Law Society of Ontario and appears throughout the Greater Toronto Area, including Milton and Oshawa. He can be reached day or night at (416) 315-1505, and consultations are free and confidential.