Anthony De Marco
Toronto Criminal Lawyer

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Anthony DeMarco | Toronto Criminal Lawyer
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Sexual Assault Lawyer In Toronto

Mississauga, Brampton And Newmarket Sexual Assault Lawyer

Commonly Asked Questions

1. What is sexual assault?

2. What are possible defences to sexual assault?

3. What is the sentence for sexual assault?

4. What is aggravated sexual assault?

5. What is the sentence for aggravated sexual assault?

6. What is sexual interference?

7. What is the sentence for sexual interference?

8. What is invitation to sexual touching?

9. What is the sentence for invitation to sexual touching?

10. What is sexual exploitation?

11. What is the sentence for sexual exploitation?

12. What is child luring?

13. What is the sentence for child luring?

14. What is SOIRA?

15. What is a Section 161 Order?

16. What are my Charter rights?

17. Can the Charter help my defence?

18. Can I get assistance from Legal Aid Ontario for my case?

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 38 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.

If your case requires a jury trial, I have the necessary experience, advocacy skills and confidence to convincingly argue your case to the jury.

Call Defence Lawyer Anthony De Marco For A Free Consultation

Contact my Toronto, Ontario, office today to discuss your sexual assault case. I offer a free 30-minute consultation. For your convenience, I offer reasonable payment plans. I also accept Legal Aid in most cases. You can reach me by phone at our office or toll free at 1-888-399-3164 or by e-mail.

What Is Sexual Assault?

The Supreme Court of Canada in R. v. Chase, [1987] 2 S.C.R. 293 defined sexual assault as an assault, within any one of the definitions of that concept set out in the Criminal Code of Canada, which is committed in circumstances of a sexual nature, such that the integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: viewed in the light of all the circumstances, is the sexual or carnal content of the assault visible to a reasonable observer? The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats, which may or may not be accompanied by force, will be relevant. The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances. Implicit in this view of sexual assault is the notion that the offence is one requiring a general intent only.

The Ontario Court of Appeal in R. v. Alderton (1985), 49 O.R. (2d) 257 ruled that sexual assault “includes an assault with the intention of having sexual intercourse with the victim without her consent, or an assault made upon a victim for the purpose of sexual gratification.” In the case under appeal, the accused broke into the victim’s apartment wearing a face mask. The victim was alone and asleep. The accused took hold of her. After a struggle, she managed to escape. The Ontario Court of Appeal found that this amounted to sexual assault since there was an assault of the victim with the intention of having sexual intercourse with the victim without her consent.

The Ontario Court of Appeal in R. v. Trachy, 2019 ONCA 622 has clarified that in a prosecution for sexual assault, it is not necessary for the Crown to prove that the conduct of the accused was for a sexual purpose. Sexual purpose is not a required element of sexual assault. Sexual purpose is, however, a required element of sexual interference and sexual exploitation.

In summary, sexual assault is an assault committed in circumstances of a sexual nature such that the sexual integrity of the complainant is violated. As a general intent offence, sexual assault does not require proof of sexual purpose or sexual gratification on the part of the accused. To establish sexual assault, the Crown must prove beyond a reasonable doubt that the accused intentionally touched the complainant without consent in circumstances of a sexual nature. In contrast to sexual purpose, the intent to be applied in determining whether the conduct is of a sexual nature is objective, in other words, “viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer.”

The mental element in sexual assault is the intention to touch. Proof of sexual purpose is not required because the “factors which could motivate sexual assault are said to be many and varied.” The purpose of the sexual assault enactment is to protect the sexual integrity of all persons, both physical and psychological.

In deciding a charge of sexual assault, the trial Judge must not conflate the issue of touching for a sexual purpose with that of touching in circumstances of a sexual nature. If the touching of the complainant by the accused is found to be not for a sexual purpose, the accused may still be convicted if the touching is found to be in circumstances of a sexual nature. Stated another way, even if a “reasonable observer” would not perceive a sexual purpose in the conduct of the accused, this is not dispositive of whether or not the accused committed sexual assault. If the sexual integrity of the complainant is violated, regardless of the accused’s purpose, the accused will be convicted of sexual assault.

The Court of Appeal for Quebec in R. v. Francis¸ 2018 QCCA 1043 explains the issue stating the following: “When sexual gratification is present, the sexual nature of the assault practically flows from the conduct itself. However, sexual assault is also, and perhaps above all, an act of violence and physical dominance: a violation of the sexual integrity of the victim. Often, sexual desire has little to do with it. Case law establishes that the intention to humiliate the victim and affirm one’s own control may be sufficient [to establish the intent for sexual assault].”

What Are The 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).

When Is An Honest, But Mistaken, Belief In Communicated Consent A Defence?

Consent, or having an honest, but mistaken, belief in communicated 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:

These are 2 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 communicated consent or honest, but mistaken, belief in communicated 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 communicated consent or honest, but mistaken, belief in communicated 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 violence (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.

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.

When Is Mistake Of Age A Defence?

The defence of mistake of age can be raised in any case in which the age of the complainant is a necessary constituent element of the defence, for example, sexual interference which can only be committed against a complainant who is less than 16 years of age.

Section 150.1 of the Criminal Code of Canada provides, however, that mistake of age is not a defence “unless the accused took all reasonable steps to ascertain the age of the complainant.”

The issue of whether an accused took “all reasonable steps” is a case specific inquiry.

Toronto Lawyer Defending Against All Sex Crime Charges

I have the experience and knowledge to defend you against even the most serious offences, including:

What Is Aggravated Sexual Assault?

Aggravated sexual assault is the crime of sexual assault that also involves the wounding, maiming, disfiguring or the endangering of the life of the complainant. This offence is punishable by a maximum sentence of life in prison.

As you can see, aggravated sexual assault is a very serious crime. If you have been charged with aggravated sexual assault, it is critical that you seek an experienced lawyer in order to help mitigate any potential criminal penalties.

I have more than 38 years of experience defending against the most serious sex crimes charges. I believe strongly that everyone deserves a defence, and I will work hard to build the strongest possible defence on your behalf.

What Are The Other Aggravating Factors For Sexual Assault?

There are other aggravating factors that can increase how many years in prison you could serve, if convicted. They include:

  • Age of victim: If the complainant is under the age of 16 years, the person convicted of aggravated sexual assault is subject to a maximum sentence of life in prison and to a minimum sentence of five years in prison.
  • Firearms: If a firearm is used in the commission of the aggravated sexual assault, the convicted person will be subject to a maximum sentence of life in prison and a minimum sentence of four years in prison.
  • Criminal organizations: If the aggravated sexual assault is committed while using a firearm and the aggravated sexual assault is committed for the benefit of, at the discretion of, or in association with a criminal organization, the convicted person will be subject to a maximum sentence of life in prison and to a minimum sentence of five years in prison for a first offence and seven years in prison for a second or subsequent offence.

In addition, the requirement that a convicted person be sentenced to a minimum period of time in prison prevents the court from imposing a community-based sentence such as a conditional sentence of house arrest.

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.

What Is Sexual Interference, Invitation To Sexual Touching And Sexual Exploitation?

Both sexual interference and invitation to sexual touching are very serious charges:

  • Sexual interference is the crime of touching with a part of the body or an object any part of the body of a person under the age of 16 years for a sexual purpose.
  • Invitation to sexual touching is the crime of inviting, counselling or inciting a person under the age of 16 years to touch, directly or indirectly, with a part of his or her body or with an object the body of any other person including the person under the age of 16 years.

A related offence is the crime of Sexual exploitation committed by anyone who is in a position of trust or authority toward a young person, or who is in a relationship of dependency or an exploitive relationship with the young person, defined as a person who is 16 years of age or more but under the age of 18 years, and who commits sexual interference or invitation to sexual touching.

The Criminal Code of Canada was recently amended to provide for higher minimum penalties with respect to the offences of sexual interference, invitation to sexual touching and sexual exploitation. If you have been charged with any of these crimes, it is absolutely critical that you seek only the most experienced of criminal defence lawyers.

What Is The Sentence For Sexual Interference, Invitation To Sexual Touching And Sexual Exploitation?

The penalty that must be imposed upon a person convicted of any of these offences is a minimum of 90 days in jail and a maximum of 2 years less a day in jail if the Crown prosecutor elects to proceed summarily and a minimum of one year in jail and a maximum of 14 years in jail if the Crown prosecutor elects to proceed by indictment. A conviction for sexual exploitation is likely to attract a sentence higher than the minimum due to the breach of trust element and the exploitive nature of the offence.

What Is Child Luring?

The offence of luring a child for a sexual purpose is committed when an accused, by means of telecommunication, communicates with

(a). a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of certain designated offences with respect to that person (such as a child pornography offence) or

(b). a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of certain designated offences with respect to that person (such as sexual interference , invitation to sexual touching and sexual assault) or

(c). a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of child abduction.

What Is The Penalty For Child Luring?

The penalties for child luring are as follows:

(a) a maximum term of imprisonment of not more than 14 years and a minimum term of imprisonment of one year if the Crown proceeds by indictment;

(b) a maximum term of imprisonment of not more than two years less a day and a minimum term of imprisonment of 6 months if the Crown proceeds summarily.

Beyond that, the stigma that attaches to those accused of the luring of children over the internet can forever change the way others view you. For all of these reasons, it is critical that you have a skilled and knowledgeable defence lawyer on your side. I have more than 38 years of experience defending against the most serious charges. I believe strongly that everyone deserves a defence, and I will work hard to build the strongest possible defence on your behalf.

Internet / Online Offences

There are a wide range of Internet sex offences, including:

Defending Internet / Online Charges

A successful defence against online sex crime charges depends not only upon your lawyer’s knowledge of the law, but also knowledge of how the law intersects with technological issues. In building a defence, I seek out answers to critical questions:

  • Did anyone else have access to the computer or smartphone device?
  • In a child pornography case, how did you come into possession of the images?
  • How and where was the child pornography stored on your device?
  • Were you the target of an undercover operation involving online chat rooms?
  • Were your rights to privacy or your rights as guaranteed by the Canadian Charter of Rights and Freedoms violated by the investigating police officers?

By answering these and other questions, I can begin to build a defence that is structured to you and designed to meet the demands of your specific case. If necessary, I will hire the services of an expert forensic computer analyst to assist with your case.

These offences carry minimum penalties which prevent the possibility of the court imposing a community based sentence such as a conditional sentence of house arrest.

A person convicted of any of these offences will also be subject to a mandatory order requiring the convicted person to comply with the provisions of the Sex Offender Information Registration Act (SOIRA). More information on SOIRA, the National Sex Offender Registry and the Ontario Sex Offender Registry is available here.

What Is Incest?

A person commits incest if he or she engages in sexual intercourse with another person who is, by blood relationship, his or her parent, child, brother or half-brother, sister or half-sister, grandparent or grandchild.

The offence of incest is an indictable offence punishable by a maximum term of imprisonment of not more than 14 years. If the other person is under the age of 16 years, there is a mandatory minimum punishment of 5 years imprisonment.

Consent is not a defence to incest. A person is not guilty of incest, however, if a court determines that at the time of the offence, the accused was under restraint, duress or fear of the person with whom the accused had sexual intercourse.

What Is Bestiality?

Bestiality is the offence of having contact with an animal for a sexual purpose.

It is also an offence to compel another person to commit bestiality.

If the offence of bestiality, or the offence of compelling the commission of bestiality, is prosecuted by indictment, the accused will be subject to a maximum term of imprisonment of 10 years. If the offence is prosecuted summarily, the accused will be subject to a maximum term of imprisonment of 2 years less one day.

There are harsher penalties that apply if the commission of bestiality involves a child, in particular, every person who commits bestiality in the presence of a person under the age of 16 years, or who insights a person under the age of 16 years to commit bestiality,

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 2 years less one day and to a minimum punishment of imprisonment for a term of 6 months.

In addition to any other sentence that the court may impose, a person convicted of any bestiality offence may be subject to a Prohibition Order prohibiting the person from owning, having the custody or control of or residing in the same premises as an animal during any period that the court considers appropriate. In the case of a second or subsequent offence, the Prohibition Order must be for a minimum of 5 years. A breach of the Prohibition Order is an offence punishable on summary conviction.

Also, the accused person may be ordered to pay to a person or an organization that has taken care of an animal, as a result of the commission of the offence, the reasonable costs that the person or organization incurred in respect of the animal, if the costs are readily ascertainable.

What Is A Section 161 Prohibition Order?

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.

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.

Pre-Trial Charter Applications

Often, the best defence to a criminal charge involves a challenge to the investigation that resulted in the arrest of the accused or the collection of evidence against the accused. The police are not allowed to breach the rights that are guaranteed to the accused by the Canadian Charter of Rights and Freedoms.

I will investigate any possible Charter breaches by carefully reviewing the Crown disclosure documents, including the documents used by the police to obtain search warrants for the home, car or other property of the accused, and the documents used by the police to obtain production orders, such as for cell phone records and wiretap authorizations.

If I detect any violation of the Charter rights of the accused or violation of acceptable investigative procedures established by the courts, I will proceed with an application asking for the exclusion of evidence from the trial of the accused obtained illegally by the police, including the statements of the accused and other evidence seized during the investigation.

I have an established reputation for success in pre-trial applications. Winning a Charter application will result in the exclusion of evidence if the court determines that not excluding the evidence will bring the administration of justice into disrepute. The exclusion of evidence often results in a finding of not guilty if the Crown’s remaining evidence is insufficient to prove that the accused committed the offence beyond a reasonable doubt.

I have the necessary experience, research skills, writing skills, and advocacy skills to prepare and effectively argue pre-trial Charter applications. The value of legal writing skills cannot be overstated since proceeding with pre-trial Charter applications will require the preparation of several documents including a Notice of Application, an Affidavit, and a Factum setting out the relevant facts and summarizing the relevant case law.

Electing To Have A Preliminary Inquiry

In cases in which a Defendant is exposed to a possible period of 14 years or more in jail, 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.

Examples Of Successful Cases

Click on the following links for summaries of a few of my successes:

R. v. K.D.

Charges:

(1) Sexual Assault (4x);

(2) Sexual Interference (4x);

(3) Invitation to Sexual Touching (3x);

(4) Threatening Death for the Purpose of Obtaining Sexual Services

R. v. B.W.

Charges:

(1) Sexual Assault;

(2) Sexual Interference

R. v. J.P.

Charges:

(1) Sexual Assault;

(2) Sexual Interference

R. V. N.W.

Charge: Sexual Assault

R. v. A.R.

Charges:

(1) Sexual Assault;

(2) Forcible Confinement

R. v. H.A. and M.A.

Charge: Sexual Assault

R. v. G.E.

Charges:

(1) Sexual Assault;

(2) Threatening Bodily Harm

R. v. A.C.

Charges:

(1) Attempted Murder;

(2) Sexual Assault;

(3) Assault with a Weapon;

(4) Assault;

(5) Criminal Harassment;

(6) Utter Death Threats;

(7) Dangerous Driving.

Please note that past results are not necessarily indicative of future results. Other litigation will vary according to the facts in individual cases.

Experience And Legal Knowledge

I have more than 38 years of experience defending against the most serious sex offence charges. I believe strongly that everyone deserves a defence, and I will work hard to build the strongest possible defence on your behalf.

Call Defence Lawyer Anthony De Marco For A Free Consultation

Contact my Toronto, Ontario, office today to discuss your sexual assault case. I offer a free 30-minute consultation. For your convenience, I offer reasonable payment plans. I also accept Legal Aid in most cases. You can reach me by phone at our office or toll free at 1-888-399-3164 or by e-mail.

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