After you have been arrested you will receive a date to appear in court. The first thing that will happen is that you will receive a copy of the "disclosure". This is all of the evidence that the police have gathered against you. Once you have reviewed all of the disclosure with your lawyer you will then need to decide whether to plead guilty or set a trial date. In most cases, the trial will take place in provincial court and will be set anywhere from about 8 to 18 months into the future depending on the length of the trial and the complexity of the issues. However, in some more serious cases, such as a sexual assault, you will be able to choose the court where the trial will take place. You can choose to have the trial in provincial court, superior court to be tried by judge alone or superior court to be tried by judge and jury. If the trial in the superior court you will also having the option of a preliminary inquiry which is held in provincial court. At a preliminary inquiry your lawyer will have the ability to cross-examine some or all of the witnesses to test their evidence in preparation for trial. Which venue is best in a particular case is dependent on a number of factors and is a topic which should be explored in detail with your lawyer.
In a recent case in the Ontario Superior Court of Justice, R. v. Hussein, the accused brought an application to have the mandatory minimum sentence for the offences of invitation to sexual touching, sexual interference and sexual assault of one year in jail struck down as unconstitutional. Section 12 of the Charter of Rights ensures that "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment."
Although the age of consent in Canada is 16, in some cases you can still be convicted of an offence for engaging in sexual activity with someone over the age of 16 but under the age of 18. If you are in a position of trust or authority towards a young person, or the young person is in a relationship of dependency with you, or exploitative of the young person, you could be convicted of the offence of sexual exploitation.
If you have been charged with Invitation to Sexual Touching pursuant to s. 152 of the Criminal Code you may be wondering what exactly this allegation involves. The section states that every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, including the body of the person who invites, counsels or incites, is guilty of an offence.
The offence of sexual interference applies to situations in which there is any touching of a minor in a sexual manner. This can include masturbation, oral sex or intercourse. Section 151 of the Criminal Code states that every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of sixteen years is guilty of an indictable offence. It does not matter if the minor consented to the activity, except in limited circumstances where the accused is close in age to the minor (see our blog entry on "Age of Consent"). Nor does it matter if the minor instigated the touching so long as the accused had a sexual purpose when taking part. In some cases, it may be possible to argue that the touching was not for a sexual purpose, such as a situation where a parent is giving bath to a child. However, in the vast majority of cases the defence will be based on an argument that the Crown has failed to prove beyond a reasonable doubt that any sexual activity took place. The focus at trial will be to attack the credibility and reliability of the allegations. A discussion of what is involved in mounting such a defence can be found in out blog entry "The I Didn't Do It Defence to a Sexual Assault Charge."
If you have been charged with a sexual offence, the consequences of a conviction can be serious. In all but the most minor of offences, some form of jail sentence is likely to be imposed. The length of the sentence can vary. In cases of date rape, the sentence is likely to be between two and five years. In cases of ongoing abuse of children, particularly if there are more than one victim, the sentence can be much higher than five years.
For certain sexual offences against young people, such as sexual interference, it is a defence in some circumstances to be mistaken about their age. In order for this defence to be valid, an accused person must take all reasonable steps to ascertain the age of the complainant. So, what does "all reasonable steps" actually mean? The Supreme Court of Canada provided some guidance in the recent case of R. v. George.
The age of consent for sexual activity in Canada is set out in the Criminal Code. As a general rule, a person cannor consent to sexual activity until they are 16 years old. As a result, if you have sexual relations with someone who is not yet 16 years old it is no defence that he or she consented to the activity. However, there are exceptions.
In a sexual assault case, sometimes the defence is that it didn't happen at all. In other cases, the accused agrees that the sexual activity happened but says that it was consensual. However, these are not the only two defences to a charge of sexual assaults. In some cases, the complainant was not consenting to sex but the accused honestly, but mistakenly, believed that he or she was consenting. If the defence is successful it will lead to an acquittal.
One of the most common defences to an allegation of sexual assault is that the complainant consented to the sexual activity. It must be remembered that you are presumed innocent and the prosecutor must prove that you are guilty beyond a reasonable doubt. This means that in order for there to be a conviction for sexual assault, it must be proven beyond a reasonable doubt that there was no consent.