Mississauga, Brampton and Newmarket Sexual Assault Lawyer
Sex crime accusations have the potential to ruin lives. A conviction can mean prison time, but it also carries life-long consequences. You may be required to register as a sex offender, and you may be required to report all your movements regularly. Sex offender status can prevent you from getting a job and could block you from travelling outside Canadian borders. More information on the Sex Offender Information Registration Act (SOIRA), The National Sex Offender Registry and the Ontario Sex Offender Registry is available here.
Beyond that, the stigma that attaches to those accused of sex crimes can forever change the way others view you. For all of these reasons, it is critical that you have a skilled, knowledgeable sex crime defence lawyer on your side. I have more than 30 years of experience defending against sex crime charges. I believe strongly that everyone deserves a defence, and I will work hard to build the strongest possible case on your behalf.
To arrange a free initial consultation with a Toronto sexual assault defence lawyer, please call 416-651-2299 or toll free 1-888-399-3164. You can also contact my law firm online.
Toronto Lawyer Defending Against All Sex Crime Charges
I have the capability to defend you against even the most serious offences, including:
- Sexual assault
- Aggravated sexual assault
- Forcible confinement
- Procuring a person for the purpose of prostitution
- Enabling elicit sexual intercourse
- Trafficking in persons for the purpose of exploitation
- Sexual interference with a person under the age of 16 years
- Invitation to sexual touching of a person under the age of 16 years
- Prostitution, communicating for the purpose of prostitution and living off the avails of prostitution
- Making child pornography
- Transmitting, making available, distributing or otherwise dealing with child pornography
- Possession of child pornography
- Accessing child pornography
- Transmitting, making available, distributing or selling sexually explicit material to a child
- Luring or communicating with a child over the internet for the purpose of facilitating the commission of a sexual offence
- Using a computer to agree or arrange with another person to commit a sexual offence against a child
An Intelligent Approach to Protect Your Rights
In creating a strong defence in sexual assault cases, pre-trial investigation is key. If necessary, I will file a third party records application to have relevant information disclosed, including records from the Children's Aid Society, the psychological history of the alleged victim and any record of previous similar complaints. I seek out any information that could lead to a successful outcome in your case.
Available Defences to a Charge of Sexual Assault
The available defences to a charge of sexual assault include the following:
- The wrong perpetrator has been charged
- The act complained of did not occur
- The act complained of did not, in law, amount to a sexual assault
- The complainant consented, or the perpetrator had an honest, but mistaken, belief that the complainant was consenting
- The perpetrator should be found not criminally responsible on account of mental disorder (NCR Application)
Honest, but Mistaken, Belief in Consent
Consent, or having an honest, but mistaken, belief in consent is not always a defence. Pursuant to Section 150.1(1) of the Criminal Code of Canada, if the complainant was under the age of 16 years, it is not a defence that a complainant consented to the activity that forms the subject matter of the charge if the accused is charged with one or more of the following offences:
- Sexual interference (Section 151)
- Invitation to sexual touching (Section 152)
- Sexual exploitation (Section 153(1))
- Bestiality (Section 160(3))
- Indecent exposure for a sexual purpose (Section 173(2))
- Sexual assault (Section 271)
- Sexual assault with a weapon, using threats or causing bodily harm (Section 272)
- Aggravated sexual assault (Section 273)
These are 2 two exceptions that apply with respect to sexual interference, invitation to sexual touching, indecent exposure for a sexual purpose and sexual assault. If the complainant was 12 years of age or more but under the age of 14 years, and the accused was less than 2 years older than the complainant, and the accused was not in a position of trust or authority towards the complainant, and the complainant was not in a relationship of dependency or an exploitive relationship with respect to the accused, then the accused may raise the defence of consent or honest, but mistaken, belief in consent. Similarly, if the complainant was 14 years of age or more but under the age of 16 years, and the accused was less than 5 years older than the complainant, and the accused was not in a position of trust or authority towards the complainant, and the complainant was not in a relationship of dependency or an exploitive relationship with respect to the accused, then the accused may raise the defence of consent or honest, but mistaken, belief in consent.
Also, Section 273.2 provides that it is not a defence to a charge of sexual assault (Section 271), sexual assault with a weapon, using threats or causing bodily harm (Section 272), or aggravated sexual assault (Section 273), that the accused believed that the complainant consented to the activity that forms the subject matter of the charge, where:
(a) the accused's belief arose from the accused's (i) self-induced intoxication, or (ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
Mistake of Age
Sections 150.1(4) (5) and(6) of the Criminal Code of Canada provide that an accused cannot raise as a defence a mistaken belief in the age of the complainant unless the accused took all reasonable steps to ascertain the age of the complainant.
I take the time to find any weaknesses in the Crown's case. For example, if you believed that the act was consensual, I will present the strongest possible argument to support you. In other cases, the credibility of the alleged victim or witnesses can come into question, especially if a history of compulsive lying or false memory syndrome can be shown. If necessary, I will ask for court permission to avoid the "rape shield" laws so I can cross-examine the alleged victim about past sexual history.
You can rely on me to construct a serious defence against these serious allegations.
DNA and Other Forensic Evidence
Forensic evidence, such as DNA evidence, is just one type of evidence that the Crown can try to introduce against a person accused of a crime. The defence can challenge the admissibility of forensic evidence on the basis of relevance, prejudice or that there is a lack of a sufficient scientific foundation to make the evidence reliable and worthy of being admitted, in other words, the forensic evidence is inadmissible because it is based on "junk science".
Over the years, there have been several types of forensic evidence that have been rejected by the courts in the United States and, to a lesser extent, Canada, including voice print identification, comparative bullet lead analysis and several indicators of arson dependent on visual cues.
Likewise, there are various other types of forensic evidence which are possibly unreliable, such as microscopic hair comparison, and "pattern comparison" evidence such as bite marks, tire marks and handwriting.
Even in cases where the forensic evidence is ruled admissible, the defence can still try to weaken the impact of the evidence by arguing, for example, that the results of the forensic testing were the subject of "motivated perception". In other words, the scientist who did the testing interpreted the results so as to support his or her expectations or the expectations of the police or Crown prosecutors. The defence can argue, or call evidence to show, that the forensic examiner should have first tested the evidence blindly without knowing anything about the case in order to avoid a subconscious bias. Studies have shown that even the opinion of fingerprint analysts can be affected by the analysts’ preconceived notions about the case. Also, there is always a risk of a false positive. Moreover, if the laboratory that completed the testing, such as the Centre of Forensic Sciences, is known to have made errors on occasion in the past, the defence can argue that the error rates should also be entered in evidence.
In appropriate cases, and where funds permit, the evidence can be re-tested by an independent laboratory for verification.
A good defence lawyer should know the weaknesses of specific scientific techniques or seek out an appropriate defence consulting expert to learn about and present evidence regarding those weaknesses.
Electing to Have a Preliminary Inquiry
In most cases in which a Defendant is facing indictable charges, or the Crown elects to proceed by indictment, the Defendant will have the right to proceed with a preliminary inquiry in the Ontario Court of Justice and then a trial in the Superior Court of Justice before a court composed of a Judge sitting with a jury or without a jury. In the past, this level of court was referred to as "High Court".
The completion of a preliminary inquiry is not mandatory. The Defendant has the right to waive the preliminary inquiry and to proceed directly to trial in either the Ontario Court of Justice or the Superior Court of Justice. If the trial is to be completed in the Superior Court of Justice, the waiver of the preliminary inquiry will require the consent of the Crown.
At a preliminary inquiry, the Crown is required to call some evidence upon which a properly instructed jury, acting reasonably, may return a verdict of guilt. This is an easy test for the Crown to meet in the vast majority of cases. Accordingly, it is relatively rare for someone who proceeds with a preliminary inquiry to be discharged with respect to all of the charges which he or she is facing. The real value in having a preliminary inquiry is not in the hope of being entirely discharged, thereby bringing the entire criminal proceedings to an end, but in being able to better prepare the case for trial. The defence lawyer will have an opportunity to cross-examine and test the evidence of the primary Crown witnesses. An experienced and skilled defence lawyer can discover the strengths and weaknesses of the Crown witnesses and commence building an effective defence strategy. A preliminary inquiry is especially valuable for the defence in cases involving young, infirm, unreliable or unsavory Crown witnesses.
Sex Offender Registry
Anyone convicted of sexual assault will be subject to a mandatory order to comply with the Sex Offender Information Registration Act (SOIRA), which will result in his or her name and other personal information being placed in the Ontario National Sex Offender Registry. In addition the convicted person will be required to have his or her name placed on the Ontario Sex Offender Registry. This can seriously affect your ability to obtain employment and the quality of your life. This is another important reason to make sure you are represented by only a qualified and skilled criminal defence lawyer. More Information on the Sex Offender Information Registration Act (SOIRA), the National Sex Offender Registry and the Ontario Sex Offender Registry is available here.
Prohibition Orders - Section 161 of the Criminal Code of Canada
A person who is found guilty of committing a sexual offence, a child pornography offence or an offence involving the Internet luring of a person who is under the age of 16 years also faces the possibility that the court may make an order prohibiting the offender from engaging in activity that may bring the offender in contact with persons under the age of 16 years. This prohibition order is discretionary. The prohibition order may be for life or any shorter period that the court considers desirable. The court may also make the prohibition order subject to conditions or exemptions that the court considers appropriate.
The prohibition order may prohibit the offender from doing any or all of the following:
a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a day care centre, school ground, playground or community centre;
(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority toward persons under the age of 16 years;
(c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or
(d) using the Internet or other digital network unless the offender does so in accordance with conditions set by the court.
Call Toronto Sex Crime Defence Lawyer Anthony De Marco for a Free Consultation
Contact my Toronto, Ontario, sex crime defence law firm today to discuss your sexual assault case. I offer a free 30-minute consultation. For your convenience, I accept Visa and offer payment plans. You can reach me by phone at 416-651-2299 or toll free 1-888-399-3164. You can also contact my law office online.