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Charged, or someone you know
What you say to anyone about the allegation can end up in evidence. Speak to a lawyer first.
Sexual Assault Defence. A Charge Is Not A Finding
These are among the most serious allegations a person can face, and among the most procedurally complex to defend. This page explains the law, the process and the protections that apply on both sides.
Section 11(d) of the Charter presumes every accused person innocent until proven guilty. The Crown must prove every element of an offence under section 271 beyond a reasonable doubt.
Sexual Offence Defence
271CC
Sexual Assault Provision
10Years
Maximum by Indictment, Adult Complainant
276CC
Prior Sexual Activity Procedure
30Months
Jordan Ceiling, Superior Court
Quick Answer
What should I do if I have been charged with sexual assault in Toronto?
Say nothing to police beyond identifying yourself and asking to speak with a lawyer. Do not contact the complainant through anyone. Do not delete messages, photographs or social media content, as deletion is damaging and may itself be an offence. Preserve everything, follow every release condition exactly, and retain experienced counsel before your first court date.
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THE OFFENCE
What Section 271 Requires
Sexual assault under section 271 of the Criminal Code is an assault, as defined in section 265, committed in circumstances of a sexual nature such that the sexual integrity of the complainant is violated. It is a hybrid offence. Where the complainant is an adult and the Crown proceeds by indictment, the maximum is ten years imprisonment; on a summary election the maximum is eighteen months. Where the complainant is under sixteen, the maximum rises to fourteen years by indictment and mandatory minimum sentences apply. Sections 272 and 273 create the more serious offences of sexual assault with a weapon or causing bodily harm, and aggravated sexual assault.
The Crown must prove the touching, its sexual nature, and the absence of consent, together with the accused's knowledge that the complainant was not consenting, or recklessness or wilful blindness as to that. Consent is defined in section 273.1 as the voluntary agreement of the complainant to engage in the sexual activity in question, assessed subjectively from the complainant's perspective at the time. Section 273.1(2) sets out situations where no consent is obtained, including where it is expressed by someone other than the complainant, where the complainant is incapable of consenting, and where the complainant expresses by words or conduct a lack of agreement to continue.
Section 273.2 limits the defence of honest but mistaken belief in communicated consent. It is unavailable where the belief arose from self-induced intoxication, recklessness or wilful blindness, or where the accused did not take reasonable steps in the circumstances known to them at the time to ascertain that the complainant was consenting. It is also unavailable where the belief is based only on the complainant's silence, passivity or ambiguous conduct.
THE PROCESS
How These Prosecutions Proceed
1
Arrest and release
Many accused are held for a bail hearing. Release conditions typically include no contact with the complainant, and sometimes restrictions on residence, employment or internet use.
2
Disclosure
The Crown brief includes the complainant's statement, often video-recorded, officer notes, any forensic or medical evidence, and electronic communications. The Stinchcombe duty governs its scope.
3
Election and pre-trials
Where the Crown proceeds by indictment, the accused elects under section 536(2). A preliminary inquiry is available only where the maximum penalty is fourteen years or more.
4
Pre-trial applications
Applications under section 276 regarding prior sexual activity, under sections 278.1 to 278.91 for third party records, and under sections 278.92 to 278.94 for records in the accused's possession, each require written notice and a hearing before trial.
5
Trial
The complainant testifies and is cross-examined, subject to the statutory limits. Testimonial aids under section 486.2 and a publication ban under section 486.4 are commonly ordered.
6
Verdict and, if convicted, sentencing
A conviction usually carries ancillary orders including registration under the Sex Offender Information Registration Act and a DNA order.
These cases take time. Section 11(b) of the Charter and the ceilings set in R. v. Jordan, 18 months in provincial court and 30 months in the Superior Court of Justice or after a preliminary inquiry, apply, though the pre-trial application procedure the Code now requires accounts for part of the delay in many files.
THE STATUTORY PROCEDURES
Section 276 and Records Applications
Two sets of rules shape how a sexual assault trial can be conducted, and both exist to prevent reliance on discredited assumptions about how complainants behave.
Procedure
What it governs
What must be shown
Section 276
Evidence of the complainant's other sexual activity
The evidence is of specific instances, relevant to an issue at trial, and has significant probative value not substantially outweighed by the danger of prejudice. It can never be used to suggest the complainant is more likely to have consented or is less worthy of belief.
Sections 278.1 to 278.91
Records held by third parties in which the complainant has a reasonable expectation of privacy, such as therapy or counselling records
A two-stage process: likely relevance, then production to the court, then a balancing before any disclosure to the defence
Sections 278.92 to 278.94
Records relating to the complainant already in the accused's possession, including private communications
A pre-trial admissibility hearing at which the complainant has standing and may be represented by counsel
Section 486.4
Publication of information identifying the complainant
A ban is mandatory on application and is routinely ordered
The practical consequence is that a defence cannot be improvised at trial. Material an accused holds, including text messages and social media exchanges with the complainant, may require a pre-trial ruling before it can be used. Bringing that material to counsel early, rather than producing it in the middle of a cross-examination, is essential. Deleting it is worse still.
DEFENDING THE ALLEGATION
Reasonable Doubt and the Evidence
Defending a sexual offence allegation is not an exercise in attacking a complainant. It is an exercise in testing whether the Crown has proved its case to the criminal standard. The live issues are typically identity, whether the touching occurred, whether it was sexual in nature, consent as defined by the Code, and the accused's state of knowledge. Reliability, as distinct from honesty, is frequently the central question: memory, the effects of alcohol, the passage of time and the influence of later conversations all bear on it.
Charter issues arise as in any prosecution. Statements taken without compliance with section 10(b) may be excluded. Searches of a residence or a phone that exceeded lawful authority engage section 8. Delay engages section 11(b). Where a breach is established, section 24(2) and the framework in R. v. Grant govern the remedy.
Practical guidance if you have been charged
Do not contact the complainant, directly or through anyone else, whether or not a no-contact condition is in place. Do not post about the case. Do not delete messages, photographs or social media content, even material you think is unhelpful, because deletion is itself damaging and may be an offence. Preserve everything and give it to your lawyer. Say nothing to police beyond identifying yourself and asking for counsel.
BAIL AND CONDITIONS
The First Weeks After a Charge
Many people charged with a sexual offence are held for a bail hearing rather than released at the station. Section 503 of the Criminal Code requires that a person in custody be brought before a justice within 24 hours or as soon as possible thereafter, and release is governed by section 515 and the three grounds in section 515(10). A release plan generally needs to address supervision, residence, and any conditions that answer the specific concerns raised, which in these files commonly include non-communication with the complainant, restrictions on attending particular places, and sometimes conditions relating to employment, the internet or contact with persons under a specified age.
Conditions of that kind can be difficult to live with for the year or more a case may take, and where they do not fit, they can be varied on consent of the Crown or on a bail review to the Superior Court of Justice under section 520. What cannot be done is to work around them informally. Breaching a no-contact condition in a sexual offence prosecution is treated extremely seriously and will affect both the breach charge and the underlying case.
There are practical matters to attend to as well. Employers, professional regulators and educational institutions may have their own processes, and those run independently of the criminal case with their own procedural rules. A person should have advice before participating in any of them, because statements made in a workplace or campus process can be obtained and used in the criminal proceeding.
SENTENCING AND HISTORICAL MATTERS
Consequences and Older Allegations
Where a conviction results, the sentence is governed by sections 718 to 718.2 of the Criminal Code with denunciation and deterrence given primary weight for offences against children under section 718.01. Ancillary orders are extensive and are part of the outcome: registration under the Sex Offender Information Registration Act, a DNA order, a weapons prohibition, and in cases involving a complainant under sixteen an order under section 161 restricting attendance at parks, schools and other places and restricting contact with young persons. These orders can be lengthy, and their terms are properly the subject of submissions.
Historical allegations, sometimes decades old, are prosecuted in Canada because there is no limitation period for indictable offences. The applicable law is generally the law as it stood at the time of the alleged conduct, which for older matters may mean offences such as indecent assault or rape as they were then defined, with the penalties available at that time. These cases raise particular difficulties for both sides: records are gone, witnesses have died, memories have changed, and the passage of time affects reliability in ways the courts recognise. Where the delay has caused genuine prejudice to the ability to make full answer and defence, section 7 of the Charter may be engaged, though the threshold is high.
Finally, a word about how these matters should be discussed. Nothing on this page suggests that complainants are not to be believed, and nothing here is a comment on any individual case. The presumption of innocence exists because the consequences of a wrongful conviction are severe, and testing the Crown's case properly is how the system distinguishes between allegations that are proved and allegations that are not. Both of those outcomes occur, and both matter.
AT TRIAL
Testimonial Aids and How Evidence Is Heard
The Criminal Code contains a series of provisions designed to allow complainants and witnesses to give their evidence fully and fairly. Section 486.2 permits a witness to testify outside the courtroom or behind a screen where it would facilitate the giving of a full and candid account. Section 486.3 permits the appointment of counsel to conduct a cross-examination where an accused is self-represented, so that the accused does not personally cross-examine the complainant. Section 486.4 provides for a publication ban on information identifying the complainant, and section 486.5 for bans protecting other witnesses. Section 486.1 permits a support person to be present.
These provisions do not reduce the Crown's burden of proof or limit legitimate cross-examination. They govern the manner in which evidence is received. Cross-examination remains available on inconsistencies, on reliability, on the circumstances surrounding the allegation and on anything genuinely relevant to a live issue. What the statutory scheme excludes is the use of a complainant's other sexual activity to support a prohibited inference, and speculation about how a person ought to have behaved.
For an accused, the practical consequence is that a trial in this area rewards preparation and penalises improvisation. Notice periods for applications must be met, the theory of the defence has to be settled before the complainant testifies, and any records or communications intended to be used need a ruling in advance. Counsel who has read the entire record, filed the necessary applications on time, and prepared a focused cross-examination is doing exactly what the system contemplates.
ACTING FOR YOU
Careful, Prepared Representation
These files require early and methodical work: full disclosure, careful analysis of the statements, preservation of electronic material, timely notice for any pre-trial application, and honest advice about the range of outcomes. They also require realism. No lawyer can promise a result, and any lawyer who does should be treated with caution. What can be promised is preparation, and that the case will be tested properly.
Given the complexity and the trial demands of sexual offence prosecutions, these matters are frequently referred by Lexaltico LLP to experienced criminal defence counsel within our LexKonnect consortium rather than being handled in-house. Where that occurs, the referral arrangement is disclosed to the client in writing before it takes effect and complies with Rule 3.6-6.1 of the Law Society of Ontario's Rules of Professional Conduct. The client's interests, and nothing else, govern the choice of counsel, and the client remains free to retain any lawyer they wish.
Common Questions
Frequently Asked Questions
What should I do if I have been charged with sexual assault in Toronto?
Say nothing to police beyond identifying yourself and asking to speak with a lawyer. Do not contact the complainant through anyone. Do not delete messages, photographs or social media content, as deletion is damaging and may itself be an offence. Preserve everything, follow every release condition exactly, and retain experienced counsel before your first court date.
What is consent under Canadian criminal law?
Section 273.1 of the Criminal Code defines consent as the voluntary agreement of the complainant to engage in the sexual activity in question, assessed from their subjective perspective at the time. Section 273.1(2) lists circumstances where no consent is obtained, including incapacity and the expression by words or conduct of a lack of agreement to continue.
Is honest but mistaken belief in consent a defence?
Only within limits. Section 273.2 makes it unavailable where the belief arose from self-induced intoxication, recklessness or wilful blindness, where the accused did not take reasonable steps in the known circumstances to ascertain consent, or where the belief rests only on the complainant's silence, passivity or ambiguous conduct.
What is a section 276 application?
A pre-trial application required before the defence can lead evidence of a complainant's other sexual activity. The evidence must concern specific instances, be relevant to an issue at trial, and have significant probative value not substantially outweighed by prejudice. It can never be used to suggest a complainant was more likely to consent or is less worthy of belief.
Can I use text messages between me and the complainant?
Possibly, but not automatically. Sections 278.92 to 278.94 of the Criminal Code require a pre-trial admissibility hearing before records relating to a complainant that are already in the accused's possession, including private communications, can be used. The complainant has standing at that hearing. Give the material to your lawyer early so notice can be filed.
What is the maximum sentence for sexual assault?
Under section 271, where the complainant is an adult and the Crown proceeds by indictment the maximum is ten years, and on a summary election eighteen months. Where the complainant is under sixteen the maximum is fourteen years by indictment and mandatory minimum sentences apply. Sections 272 and 273 create more serious offences with higher maximums.
Will I be placed on a sex offender registry if convicted?
A conviction for a designated offence generally results in an order requiring registration under the Sex Offender Information Registration Act, along with a DNA order and, in many cases, a prohibition order under section 161. These ancillary consequences are part of the sentence and should be understood before any plea is considered.
How long do these cases take?
Longer than most, because of the pre-trial application procedure the Criminal Code now requires. Two years is not unusual for a matter in the Superior Court of Justice. R. v. Jordan sets presumptive ceilings of 18 months in provincial court and 30 months in superior court or after a preliminary inquiry, subject to exceptional circumstances.
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“I had the absolute pleasure of working separately with two lawyers from Lexaltico — Pooja Lassi and Matthew Ram — on different matters. The level of professionalism, expertise, and care demonstrated by each of them was consistently exceptional. They do not simply service your needs — they take the time to thoroughly understand your situation and proactively problem-solve.”
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Failure to commence proceedings within applicable limitation periods may permanently bar your claim. In Ontario, the general limitation period is two (2) years from discovery under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. Seek legal advice promptly.
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These pages describe the law of Ontario, and of Alberta only
where a page says so expressly. They do not describe the law of any other province, territory or
country. Law that looks similar across jurisdictions frequently is not.
Currency of the law
Each page states the law as at the review date shown on it. Legislation is amended and case law
develops. A page accurate when written may no longer be.
Generality
These pages describe how a rule usually works. That is not the same as how it applies to your
facts. The exceptions are where most real matters live, and a page written for a general reader
cannot tell you whether you are inside a rule or inside its exception.
If you contact us
If you are in danger
If you or a child are in immediate danger, call 911.
This website is not an emergency service. Enquiries sent through a form here are read during
business hours and a reply may take up to one business day.
Using this website, submitting a form, sending an email or speaking to us on the telephone does
not make us your lawyers. That relationship arises only when the firm has
confirmed in writing that it has agreed to act, a conflict search has been completed, and a
retainer has been signed.
Confidentiality of enquiries
Do not send confidential or sensitive information through this website or by email until we have
confirmed in writing that we can act for you. Information sent before that point is
not treated as confidential and may prevent us from acting for you, or for
someone else, in a connected matter.
Response times
We aim to reply within one business day. Contacting us does not guarantee a reply within any
particular period, does not oblige the firm to act, and does not stop, extend or satisfy
any limitation period, filing date or court deadline.
Our telephone line
Our line is answered 24 hours a day, every day of the year. Outside office hours calls are taken
by our intake service, who record your details and pass them to the firm. A lawyer responds during
the next business day, or sooner if the matter is urgent. Answering the telephone is not the same
as giving legal advice, and no relationship arises from that call.
Who we are and how we are regulated
Law Society of Ontario
Lexaltico LLP is regulated by the Law Society of Ontario under the
Law Society Act, R.S.O. 1990, c. L.8. All lawyers practising in
Ontario through the firm are members in good standing.
Law Society of Alberta
Alberta matters are handled by lawyers licensed with, and in good standing with, the
Law Society of Alberta. A lawyer licensed in Ontario is not thereby licensed in
Alberta, and the reverse is also true.
Immigration regulation
Immigration consulting is provided by Regulated Canadian Immigration Consultants
in good standing with the College of Immigration and Citizenship Consultants under the
College of Immigration and Citizenship Consultants Act, S.C. 2019, c. 29,
s. 292.
Lawyers, paralegals and consultants
Not everyone at the firm is a lawyer.
Licensed paralegals in Ontario may act only within the scope the Law Society
permits, which does not include most family, estate or criminal matters.
Immigration consultants are regulated by the College, not by a law society,
and are not lawyers.
Law clerks and managers support files but do not give legal advice.
Each page and biography states which applies. Ask at the outset who will handle your matter and
under which licence.
Languages
We serve clients in thirteen languages. Every page of this website is written and published in
English. Where anything is provided in another language, the English
version governs in the event of a difference. If you need an interpreter, tell us when
you book and we will arrange one.
Fees
The initial assessment
The complimentary 15 minute initial assessment is a brief introductory
conversation. It does not include a review of your documents and does not constitute
legal advice.
The firm charges a fee for substantive consultations, including in civil litigation,
criminal defence and immigration matters. The firm may waive that fee at its discretion.
Any fee is disclosed in advance and credited in full toward your account if you retain the
firm.
Referral fees
Where we refer a matter to another firm, including through LexKonnect, we comply with Rule 3.6-6.1 of the Law Society of Ontario’s Rules of Professional Conduct. Any referral fee is set out in the Law Society’s standard referral agreement, signed by you before the referral proceeds, and no fee is payable to us unless and until the receiving firm has been paid for its work. You are never obliged to accept a referral and are free to retain any firm you choose. No referral arrangement affects the independent professional judgment of any lawyer at this firm.
What is published on this site
Calculators and estimators
They produce estimates from what you type and cannot know the rest. They do not
account for the terms of your contract, statutory exceptions, or the discretion a court will
apply. Do not make a decision on a number produced by a calculator.
Past results
Any outcome described happened on its own facts, before its own decision maker,
under the law as it stood at the time. Past results do not predict or guarantee the result of any
other case.
Reviews and testimonials
Reviews shown here are written by third parties and published on platforms we do not control. Each
describes one person’s experience of one matter. They are not a promise, a
prediction or a guarantee about any other matter.
Links to other websites
This site links to regulators, courts, government sources, professional associations and social
platforms, all operated by others. We do not control them, we are not responsible for
their content or accuracy, and a link is not an endorsement.
Other notices
Limitation periods
Failure to start a proceeding within the applicable limitation period may permanently bar
your claim. In Ontario the general period is two years from discovery
under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
Shorter periods apply to many claims. Seek advice promptly. Nothing on this website extends a
limitation period.
Accessibility
We aim to meet the Accessibility for Ontarians with Disabilities Act
and WCAG 2.1 Level AA. If any part of this site prevents you from reaching us, telephone
+1 416 333 6200 or write to
hello@lexaltico.com and we will provide the information
in another format, at no charge.
