Charged with Sexual Assault?
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If you have been charged with sexual assault or domestic assault in Toronto we can help. You are probably wondering how you can make this all go away and you need answers fast. Fill in this form to request a free confidential consultation. You can also call us toll-free at 1-800-699-0806 or e-mail us at defence@kruselaw.ca.

Sexual Assault FAQ

  1.  If you’ve been charged with a sexual assault offence, what are your options going forward?
  2.  What happens after your trial date is set?
  3.  When you are charged with a sexual assault, what happens during your initial court appearances in “remand court?”
  4.  What happens after the accused has completed the remand appearances and a judicial pre-trial?
  5.  What is ‘consent’ to sexual activity? Can a complainant consent if they are intoxicated by alcohol or drugs?
  6.  Is it still a sexual assault if the other adult person consented? What is the burden of proof in a sexual assault case involving an adult complainant?
  7.  If I plead guilty to my sexual assault charge or are found guilty after trial, will I go to jail? What other sanctions will I face other than a jail term?
  8.  I have been charged with sexual assault. Can I keep my name and the facts of my case out of the newspapers or media in general?
  9.  How long will the court process take in a minor (summary conviction) sexual assault prosecution?
  10.  How long will the court process take in a serious (indictable) sexual assault prosecution?
  11.  Is a mistaken belief in consent a defence to a sexual assault charge?
  12.  We were both really drunk and high on drugs when we engaged in sexual activity. Am I still guilty of sexual assault as I was so intoxicated that I was not aware what I was doing and I did not have a specific intent to commit a sexual assault?
  13.  I patted a woman on the buttocks in a bar. I know it wasn’t appropriate and I should not have done it. But how is that a sexual assault?

Answers

  1.  If you’ve been charged with a sexual assault offence, what are your options going forward?
  A.  When an individual faces a sexual assault charge, the first step is to hire a lawyer, such as one of our experienced criminal lawyers. Once we have been retained by you, we will immediately request that the crown attorney provide us with the complete investigative file (“disclosure”). This includes the police reports and notes, the complainant’s statement(s), witness statements, video statements, DNA evidence, forensic and photographs, etc. The crown will then provide us with a large disclosure package consisting of dozens to thousands of pages, depending on the severity and complexity of the case.
    Our lawyers carefully analyze and review the disclosure with the client during one or more meetings. We are then in a position to determine the odds of winning the case and examine the risks of heading to trial versus accepting a negotiated plea deal. We undertake a “cost benefit analysis” regarding the odds of winning at trial versus negotiating a plea to a reduced charge or minimizing the sentence on a plea. Did we find inconsistencies in the police or complainant’s version of events? Improbabilities? Matters that do not accord with common sense? Do we believe you have a potentially winning case and can create a reasonable doubt at trial? Does the crown have a strong case against our client, and should we recommend a guilty plea and minimize the sentence? For example, did our client confess to the charges and the statement cannot be challenged as there is no Charter argument and the statement was voluntary.
    All of these matters are carefully discussed with the client during multiple meetings, and we methodically work towards providing a final opinion to the client regarding what their best options are. However, the client makes the final decision regarding what route they want to take, based on our advice.
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  2.  What happens after your trial date is set?
  A.  If you were to set a sexual assault trial date today, you could expect that trial to take place sometime between six to eight months from now — if not a full year down the road. It’s a long process.
    This time gives us the opportunity to prepare. We may have to file pre-trial applications from applications to throw out evidence to Charter applications to evidentiary applications. There are all sorts of factual and legal issues we need to work out before a trial. If your rights were breached at any point, we need to deal with that. We may also want to bring a third party records’ application to receive the alleged victim’s counselling or psychiatric records. We often also bring a “Seaboyer” application to introduce the prior sexual conduct of the complainant. These applications require extensive written materials (‘factums’) and court appearances.
    Finally, the trial date arrives. After months of preparation, we have our day in court. The Crown will call their case and witnesses. The defence will cross-examine the witnesses, pointing out evidence which helps our defence, showing inconsistencies, bias, weaknesses and improbabilities in the crown’s case to create reasonable doubt. The defence will then make the decision whether or not the accused or other defence witnesses will testify after the crown has completed calling their case. The crown and defence then make their closing arguments.
    This is the moment of truth – when our efforts come together. In a jury trial, the jury decides the case. In a judge alone trial, the judge decides the case.
    Again, we can’t stress enough that the court process is long. Clients generally want a quick resolution, but you can’t forget how important proper preparation is for a case. For bigger cases, it can take hundreds of hours of prep work and sometimes thousands of hours. You need an experienced criminal lawyer who is willing to work hard and put in the time necessary to achieve the best results possible for your case.
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  3.  When you are charged with a sexual assault, what happens during your initial court appearances in “remand court?”
  A.  After the first court appearance, we begin our discussions with the crown attorney and continue to discuss the file with the client. Our goal is to figure out what direction we are going to take the case. Our clients do not have to appear in remand court, and we appear for them pursuant to a court document called a “designation.” At the first and subsequent remand appearances, a case is typically adjourned in three- to four-week increments, totalling three or more months, depending on the county and complexity of the case.
    As we work through to the end of the remand court process, the justice of the peace will start to put pressure on the defence counsel to select a date for guilty plea, judicial pre-trial, preliminary hearing (for serious indictable sexual assault cases) or trial.
    Usually a judicial pre-trial must be held before a preliminary hearing or a trial date is set. A judicial pre-trial is a meeting with an Ontario Court of Justice judge to discuss all aspects of the case. The Crown is present, along with the defence lawyer and an independent judge —not the judge who will be doing the preliminary hearing or trial. The judicial pre-trial focuses on case management, trial issues and court time estimates and what the Crown may offer our client if they plead guilty. It is important for our client to hear both what the Crown is offering and from the judicial pre-trial judge regarding their view of the merits of the case and position on sentencing. This will help us figure out what to do next.
    If the Crown makes a reasonable offer —for example, reducing a sexual assault charge down to an assault charge —the accused may choose to take the offer. We can then weigh the benefits and risks of going to trial versus accepting a reduced charge and avoiding jail time. In the next stage of the court process set out in the FAQ’s we will look at what happens if the Crown does not make a reasonable offer or the client wants to have a trial.
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  4.  What happens after the accused has completed the remand appearances and a judicial pre-trial?
  A.  After the accused who has been charged with a sexual assault hires a lawyer and has completed the remand appearances and a judicial pre-trial, what happens next? If the Crown make a good offer to reduce the charge, we will weigh the risks of heading to trial with our client.
    If the Crown does not make a decent offer and the chances of winning the case look reasonable, what do we do? In this situation, we will usually recommend that our client head directly to trial in the case of a minor (“summary conviction) sexual assault or to a preliminary hearing (“PH”) for a serious indictable sexual assault. A PH is not a trial, but an evidentiary hearing to determine if there is sufficient evidence to proceed to trial.
    During a PH, witnesses testify for the Crown in the Ontario Court of Justice (“OCJ”) and the defence cross examines the witnesses. This benefits the defence as we learn more about the case and find inconsistencies or improbabilities we can exploit at trial. The defence is able to “pin down” the evidence and learn more about the case to set up a winning trial strategy. For clients facing serious charges, having a PH is key.
    After the PH, we can decide if we want a judge and jury trial or a judge alone trial in the Superior Court of Justice (“SCJ”). If we decide to have a trial in the SCJ, the case will go into “assignment court” in the SCJ. There will be another “first appearance,” and the matter will get set for another judicial pre-trial (“JPT”) with a judge who will not serve as the trial judge. This process is designed to manage the case and see if there is any possibility to resolve the charges without having a trial.
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  5.  What is ‘consent’ to sexual activity? Can a complainant consent if they are intoxicated by alcohol or drugs?
  A.   The Criminal Code defines consent as “the voluntary agreement of the complainant to engage in the sexual activity in question.” When the complainant testifies that there was no consent, the court must analyze the actual state of mind of the complainant to determine whether he or she consented to the sexual activity in question. A judge or jury must look at the subjective state of mind of the complainant to determine whether there was consent.
    If the complainant consents to sexual activity, his or her consent ends at the point that they become unconscious or are unable to provide their consent. This can occur for example, in a situation where the complainant is extremely drunk or has consumed drugs and is going in and out consciousness or has no awareness of their surroundings.
     The Criminal Code further states that there is no consent in the following situations: if the agreement is expressed by words or conduct of a person other than the complainant, the complainant is incapable of consenting to the activity; the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; the complainant expresses by words or conduct, a lack of agreement to engage in the activity or the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
    Depending upon their level of intoxication, a complainant may be incapable of consenting. However, a ‘drunken consent is still a consent’ if the complainant is aware of “what is going on” (i.e. has volitional awareness and is still capable of making a decision to consent or not despite the fact that they are intoxicated) and is still capable of saying ‘yes’ by their words or actions. In these circumstance, it really depends on the complainant’s level of intoxication whether they are capable of consenting.
    There is clear case law in Canada stating that even a complainant who is very drunk, is still capable of consenting. At some point along the continuum of intoxication from being sober to “pass out drunk” or unconscious the complainant is not capable of consenting. This is a very difficult line to draw and is something that both juries and judges understandably struggle with. The courts clearly recognize that intoxication by alcohol or drugs may lower inhibitions or affect the critical judgment of a complainant, but they are still capable of consenting if they are not too drunk and are still aware of what they are doing.
    Consent is not a defence to various sexual charges in the Criminal Code involving children including invitation to sexual touching, sexual interference, and sexual exploitation. Further, consent is not a defence to committing bestiality in the presence of a person under 16 or inciting him or her to commit the offence, exposure of genital organs to persons under 16 for a sexual purpose or sexual assault in respect of a complainant under the age of 16 years. The Criminal Code currently states that age of consent is 16 years old in Canada. A person under 16 years old is not capable of consenting with an adult, but there are exceptions if the adult is close in age to a complainant who is between the ages of 14-16 as set out below.
    A defence of consent is also available for sexual interference, invitation to sexual touching, exposure of genital organs to a person under 16 for a sexual purpose or sexual assault involving children where the complainant is at least 14 years but less than 16 and the accused is less than five years older than the complainant and there is no position of trust or authority or relationship of dependency or an exploitive relationship.

A defence of consent is available for sexual interference, invitation to sexual touching, exposure of genital organs to a person under 16 for a sexual purpose or sexual assault if the complainant is at least 12 years old but less than 14, and the accused is less than two years older than the complainant and there is no position of trust or authority or relationship of dependency or exploitive relationship between the complainant and the accused.

If the complainant testifies that there was no consent, the judge or jury does not have to accept their word beyond a reasonable doubt. The trier of fact must assess the complainant’s credibility and reliability by examining all of the evidence including the accused’s evidence.If an accused is attempting to try to establish the complainant consented to the sexual activity, typically the accused will testify at the trial in an attempt to create a reasonable doubt that the complainant consented.

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  6.  Is it still a sexual assault if the other adult person consented? What is the burden of proof in a sexual assault case involving an adult complainant?
  A.   The crown must prove beyond a reasonable doubt that the alleged adult victim did not consent to the sexual activity in question. If the adult victim consented, then it is not a sexual assault. Most defences to sexual assault involve the defendant trying to establish that the complainant consented to the sexual activity. In order to win at trial, the accused merely has to raise a reasonable doubt that the complainant consented or agreed to the activity by their words or conduct. The entire factual situation will be analyzed and dissected for days at a trial to make this determination.
    Complainants are often cross examined by defence counsel for two or more days on the witness stand in an attempt to create reasonable doubt that she or he consented to the sexual activity.

  1. If you believe the testimony of the accused, you must acquit.
  2. If you do not believe the testimony of the accused, but you are left in reasonable doubt by it, you must acquit.
  3. Even if you are not left in doubt by the testimony of the accused, you must ask yourself whether, on the basis of the evidence that you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
    The scales of justice are not equal. The balance is completed tipped in favor of an accused.  A person charged with a sexual assault is presumed to be innocent at all stages of the trial. There is no burden of proof on the defendant. The burden is always on crown to prove beyond a reasonable doubt that the alleged victim did not consent.
    For example, if the crown merely proves that the accused is probably guilty, this is not proof beyond a reasonable doubt and the accused would win their trial. The crown must successfully push the scales of justice all the way down beyond a reasonable doubt in order to prove that the accused is guilty. This is a very heavy burden for the crown to prove and it is the reason why in the hands of an experienced and skilled criminal defence lawyer, the vast majority of sexual assault “he said/she said” cases (i.e. where there is no other evidence other than the word of the alleged victim versus the word of the accused) can be won.
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  7.  If I plead guilty to my sexual assault charge or are found guilty after trial, will I go to jail? What other sanctions will I face other than a jail term?
  A.  Sexual assaults range from very minor incidents involving a brief touching of a person’s buttock or breasts to sexual intercourse with an adult or a child. An accused will face a jail term for all but the most minor of sexual assaults. It might be possible to avoid a jail term on a very minor sexual assault charge, where a man briefly gropes a woman’s buttocks in a bar in circumstances of a sexual nature. However, generally for all other more serious sexual assaults in Ontario the accused will face a jail term ranging from months in jail to many years.
    The length of the jail term will depend upon the nature and severity of the sexual assault, whether the accused has a prior criminal record for any type of offence including sexual assault and the accused’s background or character. If the accused is a person of previous good character, this may slightly lessen the length of the jail term.
    The courts have developed ‘ranges of sentences’ for sexual offences based on the severity of the sexual assault. The sentencing ranges for sexual assault and especially sexual assault involving children, have gone up in recent years. The range of sentence for a date rape type incident where there are no injuries is 2-3 years in the penitentiary. For sexual assaults involving oral sex with an adult complainant, an accused could face a jail term of 15 months to 2 years less a day.
    If an adult commits a sexual offence on a child such as sexual assault, sexual interference, invitation to sexual touching or sexual exploitation, there are mandatory minimum sentences. For more minor type sexual assaults involving some form of sexual touching on a child which does not include digital penetration, the crown will probably elect summarily. The mandatory minimum jail term for summary conviction sexual interference, invitation to sexual touching or sexual exploitation involving a child is 3 months in jail. However, typically unless it is the most minor form of sexual touching, an accused will face a lengthier sentence than the 3 month mandatory minimum.
    For more serious type sexual assaults involving a child where there is sexual intercourse, or oral sex, the crown will likely elect by indictment. The mandatory minimum penalty is one year in jail for an indictable sexual offence involving a child. However, if there is sexual intercourse or oral sex involving a child the sentencing ranges are extremely high. For example, if the person was in a position of trust or authority such as a parent who is charged with having sexual intercourse with their child, they could easily go to jail for 6-10 year or more.
    The accused may be able to receive house arrest (i.e. a conditional sentence served in the community) in rare circumstances instead of going to jail if the sexual offence in question is not a serious personal injury offence, does not carry a minimum term of imprisonment, the court sentences the accused to a term of imprisonment of less than two years and the court is satisfied that the accused would not endanger the safety of the community if they serve the sentence in the community. However it seems that the courts are very reluctant to sentence an accused who has been convicted of asexual offence to a conditional sentence unless the offence is minor summary conviction charge. If a person is sentenced to less than 2 years in jail, the courts will usually also place them on probation for a period of up to 3 years to allow a probation officer to supervise them after they are released from prison. One of the terms of the probation order will be that the accused not contact the complainant or attend at their place of employment residence or school. There may also be conditions imposed that the accused is not be within a certain distance of the complainant at any time.
    General deterrence and denunciation are the two most important sentencing principles in sexual assault matters. Specific deterrence of the offender and the rehabilitation of the offender play a lesser role in sentencing for sexual assault matters. The courts in Ontario want to send a message to the public at large to generally deter people from committing sexual assaults by imposing lengthy jail terms in all but the most minor of sexual assaults. The courts also wants to firmly denounce the conduct of any offender who is charged with the sexual assault of an adult or child.

In addition to lengthy jail terms, the accused will be required to register in the National Sex Offender Registry. If the offence involved a child, the court will likely make long term orders that the accused not attend a public park or swimming area where persons under the age of 16 are present or reasonably expected to be present. The court will also likely bar the offender from seeking employment or becoming a volunteer where the position involves being in a position of trust or authority towards persons under the age of 16. Further, the court may bar the accused from having any contact with a person under the age of 16 or using the Internet or other digital networks. These prohibition orders may be for life or any shorter duration that the court considers desirable.

The court will further order the offender to provide a sample of their DNA to be placed in the DNA data bank to assist in investigating crime in Canada.

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  8.  I have been charged with sexual assault. Can I keep my name and the facts of my case out of the newspapers or media in general?
  A.  The short answer to this question is that there are no provisions under the Criminal Code preventing publication of an accused’s name or the allegations in the media. Unfortunately, newspapers will occasionally publish that a person has been charged with sexual assault even when they are a low profile or non-public figure. For higher profile public figures, the media will invariably publish their name and the details of the allegations. It seems inherently unfair that a person who is presumed innocent can have their reputation sullied by publishing their name and reporting the details of the allegations in the media.
    An accused can request a publication ban before their bail hearing commences, during their bail hearing, and at the beginning of their preliminary hearing. However, these type of publication bans do not prevent publication of the accused’s name in the media. They only ban the media from publishing the evidence revealed at the bail hearing or at the preliminary hearing.
    An accused cannot request a publication ban at their trial. The media is generally able to fully report all of the facts and evidence that arise during the course of an accused’s trial except for the name of the complainant (if the crown attorney has requested an order banning publication of any information that can identify the complainant).
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  9.  How long will the court process take in a minor (summary conviction) sexual assault prosecution?
  A.  The crown attorney will generally elect summarily in a sexual assault prosecution which involves more minor forms of sexual touching. The crown will elect by indictment if the complainant alleges any form of sexual intercourse. If there are allegations of oral intercourse, the crown could choose to elect either summarily or by indictment depending upon the facts of the particular case. If the sexual assault is historical i.e. the allegation occurred more than six months ago, the crown is required to elect by indictment.
    If the crown elects summarily, this means the case will be prosecuted in the Ontario Court of Justice and the accused does not have a right to a preliminary hearing or a trial in the Superior Court of Justice. It is assumed below that the crown has elected summarily. If the crown elects by indictment and the accused elects to have a preliminary hearing and then a judge and jury trial or a judge alone trial in the Superior Court of Justice, the time period from the date of arrest to the completion of the accused’s trial in the Superior Court of Justice, will be much longer than the time periods set out below.
    The first appearance in court for a sexual assault charge is generally set approximately 3-6 weeks after the accused’s arrest depending upon which county or court house is handling the matter. Typically there are 2-4 months of court appearance in ‘remand court’ where the accused’s lawyer is receiving all of the disclosure from the crown attorney (i.e. the complete police investigation, witness statements, video statements, 911 tapes, medical records, crime scene photographs etc.) meeting with the client and entering into discussions with the crown attorney regarding resolving the case or discussing the trial issues. The accused is generally not required to attend with their lawyer in remand court.
    After the accused’s lawyer reviews the disclosure and for example, the Crown has a strong case which does not appear to be defendable, an accused might give their lawyer instructions that they wish to plead guilty. The lawyer will then attempt to negotiate the best possible sentence with the crown. The lawyer will then set up a judicial pre-trial (i.e. a meeting with the crown and judge to discuss all aspects of the case and the client’s background) to attempt to convince the judge to agree to the lightest sentence possible.
    Depending upon how busy the courts are in a particular county or courthouses, it might be possible to set up a judicial pre-trial within 2 months after the first appearance. Therefore the accused might be in a position to plead guilty and be sentenced in front of a judge at some point during the 2 to 4 month remand period. An accused could plead guilty earlier than 2 -4 months after their arrest if they decided not to have a judicial pre-trial. However, it is generally advisable to have a judicial pre-trial to make sure that the judge is agreeable to a particular sentence or joint submission which has been negotiated with the crown or to attempt to convince the judge to impose a lesser sentence than the crown is asking for.
    If the accused wishes to have a trial (for example, their lawyer has advised them that they have a viable defence and they have a potentially winnable case) typically at the end of the 2 to 4 months of remand appearances, an “administrative” judicial pre-trial will be set. An administrative judicial pre-trial is a meeting held in a judge’s chambers with a judge, the crown attorney and the defence lawyer. The judge who conducts a judicial pretrial will not be the trial judge.
    All aspects of the case are discussed with a judge at the administrative judicial pre-trial including estimating the length of the trial, discussing legal and factual issues and to see if there is any way of resolving the case without having a trial. Once the judicial pre-trial is completed, the defence lawyer is in a position to set the matter for trial. Depending upon how busy a particular county and courthouse is, the trial date will be set anywhere from 6-12 months after the judicial pre-trial has been completed.

Some courthouses and counties have serious delay problems where the courts are completely booked for up to a year or more down the road. It is not unusual in certain counties that a defence lawyer will ask for the earliest possible trial date and that trial date might not be set for at least 12 months after the judicial pre-trial has been completed because there are simply no courts or judges available to try the case. In some smaller counties, it might be possible to set a trial date 6 months after the judicial pre-trial as that particular courthouse or county does not have a trial delay problem.

However, typically a summary conviction sexual assault prosecution that proceeds to a 1-3 day trial will be set in busier courthouses in Ontario approximately 12-15 months after the date of the arrest. Unfortunately, it is a long process and most court houses, especially in the GTA, are very booked with other trials and there are a lack of resources. There are simply not enough courtrooms or judges to manage the trial workload in a timely fashion. There is basically nothing the accused can do to speed up the trial process other than having their defence lawyer ask the court to set the earliest possible trial date.

Under s. 11(b) of the Canadian Charter of Rights and Freedoms, any person charged with an offence has the right to be tried within a reasonable time. Occasionally a charge may be stayed (similar to a withdrawal of the charges) under s. 11(b) of the Charter if the trial date is set too far in the future.

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  10.  How long will the court process take in a serious (indictable) sexual assault prosecution?
  A.  The crown attorney will generally elect by indictment in a sexual assault prosecution which involves any form of sexual intercourse. If there are allegations of oral intercourse, the crown could choose to elect either summarily or by indictment depending upon the facts of the particular case. If the sexual assault is historical, i.e. the allegation occurred more than six months ago, the crown is required to elect by indictment.
    If the crown elects by indictment, this means that the accused has a right to elect to be tried by a judge alone or by a judge and jury in the Superior Court of Justice. The accused also has a right to request that a preliminary hearing be held in the Ontario Court of Justice. It is generally strategically advisable for the accused to request that a preliminary hearing be held in a serious indictable sexual matter.
    It is assumed below that the crown has elected by indictment. If the crown elects summarily, the time period from the date of arrest to the completion of the accused’s trial in the Ontario Court of Justice, will be much shorter than the time periods set out below.
    The first appearance in the Ontario Court of Justice for a sexual assault charge is generally set approximately 3-6 weeks after the accused’s arrest depending upon which county or court house is handling the matter. Typically there are 2-4 months of court appearance in the Ontario Court of Justice ‘remand court’ where the accused’s lawyer is receiving all of the disclosure from the crown attorney (i.e. the complete police investigation, witness statements, video statements, 911 tapes, medical records, forensics, DNA evidence, crime scene photographs etc.) meeting with the client and entering into discussions with the crown attorney regarding resolving the case or discussing trial issues. The accused is generally not required to attend with their lawyer in remand court.
    After the accused’s lawyer reviews the disclosure and for example, the crown has a strong case which does not appear to be defendable, an accused might give their lawyer instructions that they wish to plead guilty. The lawyer will then attempt to negotiate the best possible sentence with the crown. The lawyer will then set up a judicial pre-trial (i.e. a meeting with the crown and judge to discuss all aspects of the case and the client’s background) to attempt to convince the judge to agree to the lightest sentence possible.
    Depending upon how busy the courts are in a particular county or courthouses, it might be possible to set up a judicial pre-trial within 2 months after the first appearance. Therefore the accused might be in a position to plead guilty and be sentenced in front of a judge at some point during the 2 to 4 month remand period. An accused could plead guilty earlier than 2-4 months after their arrest if they decided not to have a judicial pre-trial. However, it is generally advisable to have a judicial pre-trial to make sure that the judge is agreeable to a particular sentence or joint submission which has been negotiated with the crown or to attempt to convince the judge to impose a lesser sentence than the crown is asking for.
    If the accused decides to elect to be tried by a judge alone in the Superior Court of Justice or by a judge and jury and also wishes to have a preliminary hearing in the Ontario Court of Justice (for example, their lawyer has advised them that they have a viable defence and they have a potentially winnable case), typically at the end of the 2 to 4 months of remand appearances, an “administrative” judicial pre-trial will be set. An administrative judicial pre-trial is a meeting held in a judge’s chambers with a judge, the crown attorney and the defence lawyer. All aspects of the case are discussed with a judge at the administrative judicial pre-trial including estimating the length of the preliminary hearing, discussing legal and factual issues, deciding what witnesses will be called to testify and to see if there is any way of resolving the case without having a trial. Once the judicial pre-trial is completed, the defence lawyer is in a position to set the matter for a preliminary hearing. Depending upon how busy a particular county and courthouse is, the preliminary hearing date will be set anywhere from 6-12 months after the judicial pre-trial has been completed.

Some courthouses and counties have serious delay problems where the courts are completely booked for up to a year or more down the road. It is not unusual in certain counties that a defence lawyer will ask for the earliest possible preliminary hearing date and that date might not be set for at least 12 months after the judicial pre-trial has been completed because there are simply no courts or judges available to try the case. In some smaller counties, it might be possible to set a preliminary hearing date 6 months after the judicial pretrial as that particular courthouse or county does not have delay problem.

However, typically an indictable sexual assault prosecution that proceeds to a 1-2 day preliminary hearing will be set in busier courthouses in Ontario approximately 12-15 months after the date of the arrest. Unfortunately, it is a long process and most court houses, especially in the GTA, are very booked with other preliminary hearings and trials and there are a lack of resources. There are simply not enough courtrooms or judges to manage the preliminary hearing and trial workload in a timely fashion. There is basically nothing the accused can do to speed up the process other than having their defence lawyer ask the court to set the earliest possible trial date.

Once the preliminary hearing has completed and assuming there was enough evidence presented for a judge to commit the accused to trial, the accused will be given an assignment court date in the Superior Court of Justice. There will be another series of remand appearances in the Superior Court of justice. After perhaps one or two assignment court appearances over the course of 2 months in the Superior Court of justice another administrative judicial pre-trial will be set up with a judge from the Superior court of Justice. The judge who conducts the pre-trial will not be the judge who presides at the trial.

Both crown counsel and defence counsel are required to submit a pre-trial conference report prior to the judicial pre-trial setting out all of the legal and factual issues in the case. There may also be further discussions to see if the matter is resolvable. Again, all aspects of the case will be discussed with the judge with a view to estimating the length of the trial, deciding what witnesses will be called at trial and all of the factual and legal issues surrounding the case will be discussed in detail. There may also be discussions to see if the case is resolvable. For example, if the crown feels that they have a weak case and no reasonable prospect of conviction, the crown might withdraw the charge or perhaps offer a peace bond and then withdraw the charge.

After the judicial pre-trial is completed, a trial date will be set in the Superior Court of Justice and any pre-trial application dates will also be set. Depending on the county or court house, a judge alone trial or a judge and jury trial in the Superior Court of Justice will be set 6-12 months after the judicial pre-trial is completed.

When we add all of these time periods together, by the time multi day indictable sexual assault trial dates have been set, it may be up to 2 years or more from the date of arrest before the trial commences. In fact, it is not unusual for trial dates in Superior Court of justice to be set 2 ½ -3 years after the date of arrest.

Under s. 11(b) of the Canadian Charter of Rights and Freedoms, any person charged with an offence has the right to be tried within a reasonable time. Occasionally a charge may be stayed (similar to a withdrawal of the charges) under s. 11(b) of the Charter if the trial date is set too far in the future.

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  11.  Is a mistaken belief in consent a defence to a sexual assault charge?
  A.  The Supreme Court of Canada has ruled that an honest but mistaken belief that the complainant consented to sexual activity is a valid defence. To establish this defence, the accused has to honestly believe that the complainant communicated consent and agreed to sexual activity through their words and/or actions. If the accused merely testifies that they thought the complainant in their own mind wanted to engage in sexual activity, but the complainant did not state that in words and/or actions, the accused will not be able to establish a defence.
    A mistaken belief in consent is sometimes referred to as “apprehended consent.” The Criminal Code states that a mistaken belief in consent is not a defence to a charge of sexual assault where the accused’s belief arose from the accused’s self-induced intoxication, recklessness or willful blindness or the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
    The courts have ruled that if the complainant says “no” and the accused continues with sexual contact without ensuring that the complainant has changed his or her mind back to “yes”, then the accused is reckless and will not be able to establish the defence.
    The defence of apprehended consent is basically a denial that the accused had mens rea (i.e. Latin legal term meaning a ‘guilty mind’) and he or she did not intend to commit a sexual assault because they honestly believed the complainant consented. This defence is available where there is evidence at the trial that establishes “an air of reality” to the defence. It is not technically necessary for the accused to testify to raise the defence, but usually an accused will testify that the complainant consented or alternatively, that they had an honest but mistaken belief that the complainant consented. The crown attorney has the burden of proving beyond a reasonable doubt that the accused knew that the complainant was not consenting to establish this defence.
    This defence can often be established when there are certain facts arising from the complainant’s evidence which tend to indicate that the complainant took steps to participate in the sexual activity. Evidence can also be called from other people to establish that the complainant was willing to engage in sexual activity.
    The Criminal Code states that the accused must take reasonable steps to ascertain that the complainant was consenting, but they are not required to take “all” reasonable steps. What are reasonable steps? These are factual considerations which must be determined by a judge or jury. The defendant is not required to specifically ask the complainant if they wish to engage in sexual activity. Apprehended consent can often be established by the words, conduct, actions and body language of the complainant which indicate a willingness to engage in sexual activity.
    A judge or jury considers the apprehended consent defence only after making a finding that the complainant did not in fact consent beyond a reasonable doubt.
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  12.  We were both really drunk and high on drugs when we engaged in sexual activity. Am I still guilty of sexual assault as I was so intoxicated that I was not aware what I was doing and I did not have a specific intent to commit a sexual assault?
  A.  If an accused is extremely intoxicated by drugs and/or alcohol and they did not have an awareness or a general intent to commit a sexual assault as they “did not know what they were doing” (i.e. their actions were not volitional or intentional as they were in a state of ‘insane automatism’ due to their intoxication level), this is not a defence to a sexual assault in Canada.
    In R. v. Daviault (1994) the Supreme Court of Canada surprisingly ruled that alcohol or drug induced insane automatism could be a very narrow defence in a sexual assault case in extenuating and highly unusual circumstances where the accused person was in a state of “insane automatism” where they did not have not have the general intent to commit a sexual assault. The court stated that this was a very difficult defence to establish and would only be successful in very rare and unusual cases. The court further stated that expert testimony from a forensic toxicologist and forensic psychiatrist would be necessary to establish this defence.
    However, almost immediately following this ruling, Parliament quite properly and understandably enacted a law removing this defence for general intent offences such as sexual assault. Clearly, a person who drinks to the point where they are not aware of their actions and is oblivious to what they are doing, should not be able to rely on the fact that they drank to ‘oblivion’ to defend their sexual assault charge. Under the Criminal Code and the common law, alcohol or drug induced insane automatism remains a defence only to certain specific intent Criminal Code offences such as first-degree murder and various other specific intent crimes.
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  13.  I patted a woman on the buttocks in a bar. I know it wasn’t appropriate and I should not have done it. But how is that a sexual assault?
  A.  The Supreme Court of Canada has defined a 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. If a man intentionally touches a woman’s buttocks in a bar and the woman did not consent or agree to the touching, a court would likely find that this is a sexual assault. The circumstances are clearly of a sexual nature and the sexual integrity of the woman has been violated. The same could be said of a man who intentionally briefly touches a woman’s breast in a bar or other place as this is also clearly a sexual assault. The court will examine all of the factual circumstances including the nature of the touching, any words that were said and whether the sexual integrity of the victim has been violated, to determine if a sexual assault has been committed.
    There are situations where a pat on the buttocks would clearly not be a sexual assault such as “bum patting” between team mates supporting each other at a college or professional football game. An adult male or female coaching children of any age should not engage in this type of behaviour as depending on the situation, their actions could be construed as a sexual assault.
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