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Aggravated Sexual Assault Lawyer In Toronto

Mississauga, Brampton and Newmarket Aggravated Sexual Assault Lawyer

Commonly Asked Questions

  1. What is aggravated sexual assault?
  2. What is wounding?
  3. What is maiming?
  4. What is disfiguring?
  5. What is endangering the life of the complainant?
  6. What is the sentence for aggravated sexual assault?
  7. What are the aggravating factors for sexual assault?
  8. Are there aggravating sentencing factors for aggravated sexual assault?
  9. What are my Charter rights?
  10. 10. Can the Charter help my defence?
  11. Can I get assistance from Legal Aid Ontario for my case?

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 complete your defence and mitigate any possible criminal penalties.

I have more than 35 years of experience defending against the most serious sexual assault charges including human trafficking, sexual interference, and internet child luring. I believe strongly that everyone deserves a defence, and I will work to build the strongest possible defence 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 aggravated 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 (416) 651-2299 or toll free at 1-888-399-3164 or by e-mail.

What is aggravated sexual assault?

Subsection 273(1) of the Criminal Code of Canada provides as follows:

  • 273 (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.

What is wounding?

A "wound" is an injury that involves a breaking of the skin.

What is maiming?

The definition of "maiming" is to deprive the use of some part of the body by wounding.

What is disfiguring?

The term "disfigure" has been defined by case law as more than a temporary marring of the figure or appearance of a person. This suggests that disfiguring includes the marring of the appearance or beauty of a person.

What is endangering the life of the complainant?

Endangering the life of the complainant may occur in different ways and may include knocking the complainant unconscious by a blow to the head. Not disclosing a positive HIV status to the complainant before indulging in sexual intercourse with the complainant has also been found to be sufficient to establish the requirement of endangering the life of the complainant, whether or not the sexual intercourse actually leads to infection.

What is the sentence for aggravated sexual assault?

Subsections 273(2), (3) and (4) of the Criminal Code of Canada provide as follows:

  • 273(2) Every person who commits an aggravated sexual assault is guilty of an indictable offence and liable
    1. (a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
      1. in the case of a first offence, five years, and
      2. in the case of a second or subsequent offence, seven years;
    2. (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
    3. (a.2) if the complainant is under the age of 16 years, to imprisonment for life and to a minimum punishment of imprisonment for a term of five years; and
    4. (b) in any other case, to imprisonment for life.
  • (3) In determining, for the purpose of paragraph (2)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:
    1. an offence under this section;
    2. an offence under subsection 85(1) or (2) or section 244 or 244.2; or
    3. an offence under section 220, 236, 239 or 272, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence.
    However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
  • (4) For the purposes of subsection (3), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.

Are There 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.

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.

Sex Offender Registry

Anyone convicted of aggravated 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:

  1. 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;
  2. 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;
  3. 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
  4. using the Internet or other digital network unless the offender does so in accordance with conditions set by the court.

Call Defence Lawyer Anthony De Marco for a Free Consultation

Contact my Toronto, Ontario, office today to discuss your charge of aggravated sexual assault. 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 416-651-2299 or toll free at 1-888-399-3164 or by e-mail.