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Sexual Assault Charges - Defending The Accused

Being charged with sexual assault in today’s world has wide implications from both a criminal and social perspective. What is sometimes lost in the media coverage of claims of sexual assault is the presumption of innocence in our legal system.

That presumption and the ability to defend yourself is a cornerstone of your legal rights and at Gupta Criminal Trial Lawyer we take that right as seriously as the accusation itself.

Although we believe in the rights of victims of sexual assault to be heard, we also work with the accused to first listen to the details of the case. We will leave no stone unturned in uncovering all the facts in your defence.

Sexual Assault Definition

The Supreme Court of Canada defines sexual assault as an assault committed by a male or female in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. It can also be touching that is sexual in nature, either in a specific area of the body or touching for sexual gratification.

Seven crimes (as listed in police sources) are included in this section: level 3 (aggravated) sexual assault, level 2 (weapon or bodily harm) sexual assault, level 1 sexual assault, incest, anal intercourse, voyeurism, and other sexual violations.

Our courts have said that an assault can take place even with the least amount of touching. This is a very broad definition. If a person taps someone on the shoulder to get their attention, that would technically be an assault. That is why it is important to examine the details of each case.

What is Aggravated Sexual Assault?

If a person injures an alleged victim during a sexual assault, the injuries elevate the crime to aggravated sexual assault. Sexual assault becomes aggravated sexual assault when a person, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.

Consent - The victim’s state of mind

Lack of consent is one of the most complicated elements of a sexual assault case. Determining whether there was no consent in a case of sexual assault is a matter of looking at the victim’s actual state of mind at the time the assault happened. 

No one can know with absolute certainty what the victim was thinking at the incident. If a person claims that they did not consent, that statement will have to be weighed with all of the other evidence, including their actions at the time of the alleged assault. 

The accused person’s state of mind

Although the accuser’s state of mind is key in determining consent, the accused state of mind should not be neglected. The accused also has to know that the person is not consenting to the touching or that the touching is unwanted sexual touching.

Even if the accused person does not know with absolute certainty that there is no consent, that person might still be guilty. If a person is reckless with regard to consent, that can still count as sexual assault.

The accused may also be ‘willfully blind’ in their actions when they have realized that they should have asked explicitly for consent, but failed to do so.

Age of the victim

A person under 16 years old cannot legally provide consent. Therefore, even though the victim gave verbal consent, someone can still be charged.

There are some exceptions to this rule. If the complainant is 12 or 13 years-old, an accused person who is less than two years older than the complainant might not be guilty of sexual assault. Further, the accused person cannot have been in a position of trust or an exploitative relationship with the complainant. Similarly, if the complainant is 14 or 15 years-old and the accused is less than five years older than the complainant, the accused may not be guilty of sexual assault.

Consequences of Conviction of Sexual Assault

A convicted sexual offender may have to register with the Sex Offender Registry. The Sex Offender Registry was established in Canada in 2004 as a way to keep track of the whereabouts of convicted sexual assault offenders. People on the registry cannot travel outside their province without first notifying officials. They are also not allowed to talk to children or be within the vicinity of schools or public pools.


A sexual assault can be tried as either a summary or indictable conviction. Summary convictions can carry a sentence of up to 18 months. Indictable offences are more serious and can carry a sentence of up to 10 years. Further, aggravated sexual assault can lead to a life sentence.

Aggravating Factors – When convicted of a sexual assault the judge will take aggravating factors into consideration. Aggravating factors may make the penalties more severe and at the discretion of the judge. Aggravating factors include how long the defendant pre-planned and organized the sexual attack. If the accused is found to have instruments in preparation of an assault such as rope or zip ties, that would be considered an aggravating factor.

Mitigating Factors – These are factors that may allow the judge to provide a more lenient sentencing of someone convicted of sexual assault. Mitigating factors may include the mental state or health of the defendant, substance abuse, and other factors. If it is determined that the defendant lacked mental capacity at the time of the incident, a treatment centre may be recommended instead of incarceration.

Sexual Assault Defence Lawyer

Because of the potential serious penalties and consequences that a person accused of aggravated sexual assault faces, it is essential that a defendant seek an experienced sexual assault defence lawyer. Learn more about our Sexual Assault Charge Defence Services.

An experienced criminal defence lawyer will thoroughly investigate your case, assert any possible defences, represent you at trial or negotiate a plea bargain – if appropriate – and guide you through the criminal court process.

Rishma Gupta practices exclusively in the area of criminal defence law. Contact Rishma today at 416-844-8467 or