Sexual Assault Lawyer Calgary

A criminal defence lawyer specializing in sexual offences can assist you in navigating a sexual assault prosecution, where the stakes are high for all parties involved.

Calgary Sexual Assault Prosecutions | Jason Wuttunee

Sexual assault prosecutions

 

Sexual assault prosecutions involve complex issues of law, criminal procedure, and evidence, and they require considerable expertise to defend. The investigating police agency will typically interview the complainant and any other potential witnesses to the events. They will also collect as much forensic and other evidence as possible to corroborate the complainant’s version of events, including DNA obtained through sexual-assault forensic examinations conducted shortly after the alleged offence.

 

A sexual assault, generally speaking, is an intentional touching of a sexual nature, although it can be committed in other ways. The Crown must prove not only that the accused intended the sexual touching, but it must also prove the absence of the complainant’s consent to the activity in question beyond a reasonable doubt and that the accused knew or was willfully blind to the complainant’s lack of consent.

 

The issue of consent is frequently contested and fiercely litigated at trial, and sexual assault prosecutions often fail on this point.

Consent

The starting point analysis for any sexual assault prosecution is the law of consent. Consent in law means the voluntary agreement of the complainant to engage in the sexual activity in question. The complainant must, through his or her words or conduct, communicate a willingness to engage in the sexual activity. Silence or acquiescence is not consent. The law requires an affirmative communication of the participants’ willingness to engage in the activity in question.

The Criminal Code specifically negates consent where any of the following scenarios apply:

  1. the agreement is expressed by the words or conduct of a person other than the complainant;
  2. the complainant is unconscious;
  3. the complainant is otherwise incapable of consenting to the activity for any reason;
  4. the accused induces the complainant to engage in the activity by abusing a position of trust, power, or authority;
  5. the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
  6. the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue in the activity.

Further, no consent is obtained where the complainant submits to the act or does not resist by reason of:

  1. the application of force to the complainant or to a person other than the complainant;
  2. threats or fear of the application of force to the complainant or to a person other than the complainant;
  3. fraud; or
  4. the exercise of authority.

An accused must take reasonable steps, in the circumstances known to him or her at the time, to ascertain whether the complainant is consenting to the sexual activity in question. The determination of what constitutes reasonable steps will depend on all the circumstances known to the accused at the time. At the very least, an accused’s belief as to consent cannot be predicated upon his or her self-induced intoxication, recklessness or wilful blindness, or any of the other circumstances noted above in which consent is vitiated.

The Crown must in every case prove the absence of the complainant’s consent beyond a reasonable doubt, and an accused may very well have an honest albeit mistaken belief in the complainant’s consent, which would constitute a complete defence to the charge provided his or her belief is reasonable in the circumstances.

Consent | Calgary Sexual Assault Lawyer | Jason Wuttunee
The Age of Consent | Jason Wuttunee

The age of consent

The age of consent in Canada is 16 years old. An individual under the age of 16 is legally unable to consent to sexual activity of any kind with a person 18 years of age or older.

The Criminal Code articulates a close-in-age exception in cases involving a youthful accused. Where the complainant is over the age of 12 and under 14 years old, the complainant’s consent will be a defence to a charge of sexual assault if the accused is less than two years older than the complainant and is not in a position of trust or authority towards the complainant or in a relationship of dependency or exploitation.

Where the complainant is either 14 or 15 years old, the complainant’s consent will be a defence to a charge of sexual assault where the accused is less than five years older than the complainant and is not in a position of trust or authority towards the complainant or in a relationship of dependency or exploitation.

Your criminal defence lawyer must carefully and thoroughly assess all the Crown’s evidence in order to determine whether the Crown can prove the essential elements of the offence beyond a reasonable doubt. An accused is never required to testify or call evidence, but tactically an accused may need to give evidence in the defence case where the Crown’s case would likely result in proof beyond a reasonable doubt. A skilled sexual assault lawyer will know the threshold.

Penalties for sexual assaults

The Criminal Code recognizes various that sexual assaults can be committed in several different and increasingly harmful ways, each with increasing levels of penalty.

Sexual assault under section 271 of the Criminal Code carries a maximum sentence of 10 years jail where the Crown proceeds by indictment. The maximum penalty is 14 years jail where the complainant is under the age of 16 years old, and an accused convicted of sexually assaulting a minor will face a mandatory minimum sentence of one year jail, albeit the mandatory minimum has been struck down in Alberta.

Where the Crown elects to proceed summarily, the maximum sentence for sexual assault is 18 months jail or two years less a day where the complainant is under the age of 16 years old. The mandatory minimum jail sentence for sexually assaulting a minor where the Crown proceeds summarily is 6 months jail has also been declared unconstitutional.

Notably, the starting-point jail sentence for major sexual assaults in Alberta, which is a sexual assault involving sexual intercourse, anal or oral intercourse, digital penetration, or any form of sexual conduct in which major harm is foreseeable, is 3 years jail. The sentence will increase or decrease depending on the aggravating and mitigating factors in the case.

The point is that any person accused of committing a sexual assault in these circumstances realistically faces a lengthy jail sentence in a penitentiary if convicted.

Fourteen years is the maximum jail sentence for sexual assaults involving the infliction of bodily harm or threats to cause bodily harm; use of a weapon; choking, suffocating, or strangulation, or group sexual assaults involving multiple offenders or threats to cause bodily harm.

Where an accused uses a firearm in the commission of a sexual assault, the Court will impose a mandatory minimum jail sentence of 4 to 5 years jail depending on the type of firearm employed.

Aggravated sexual assaults in which the accused maims, wounds, disfigures, or endangers the life of the complainant carry a maximum sentence of life imprisonment.

Penalties for Sexual Assault | Jason Wuttunee
Sexual Offender Information Registration Act (SOIRA) | Jason Wuttunee

Sexual Offender Information Registration Act (SOIRA)

Every offender convicted of a sexual offence must be registered on the National Sex Offender Registry under the Sex Offender Information Registration Act (SOIRA). Once registered, the offender must provide a significant amount of information to the government on a yearly basis. If the Crown proceeds by indictment, as it should in the cases involving major sexual assaults, the duration of the Order will be for a minimum of 20 years.

A criminal defence lawyer specializing in sexual offences can assist you in navigating a sexual assault prosecution, where the stakes are high for all parties involved.

Consult our Calgary Sexual Assault Lawyer

An accusation of sexual assault can have significant consequences. So, if you have been charged or questioned concerning a sexual assault, you should consult a sexual assault lawyer immediately.

For sexual assault cases in Calgary, contact us at the law office of Jason Wuttunee Criminal Defence Lawyer.

Mr. Wuttunee is an experienced sexual assault lawyer who understands the nuances of advancing a successful defence, and he is committed to pursuing the best possible outcome for his clients at the earliest stage of prosecution.