What the law says about consent
Under the Criminal Code, consent means voluntary agreement to the sexual activity at the time it happens. Consent can't be implied from silence or from a past relationship, and it can be withdrawn at any time. A person who is unconscious or otherwise incapable can't consent.
An accused person can sometimes argue that they honestly believed there was consent, but only if they took reasonable steps, in the circumstances known to them, to find out whether the other person was consenting. Intoxication of the accused is not an excuse.
Charges and penalties
Sexual assault under section 271 is a hybrid offence. When the Crown proceeds by indictment, the maximum is 10 years, or 14 years if the complainant was under 16. When it proceeds summarily, the maximum is 18 months, or two years less a day if the complainant was under 16. More serious charges include sexual assault with a weapon or causing bodily harm, and aggravated sexual assault.
Other consequences can include a DNA order, a weapons prohibition and, in many cases, registration on the national sex offender registry. Since reforms in 2023, registration is automatic only for certain people, such as repeat sexual offenders. For others, registration is ordered in most cases, but a judge can decline in limited circumstances.
How sexual assault cases are defended
- Credibility and reliability: inconsistencies between the complainant's statements, testimony and other evidence such as messages, timelines and witnesses.
- Communications and records: texts and social media can be crucial, but there are special procedures before the defence can use some private records or evidence of other sexual activity. Those applications have to be prepared carefully and on time.
- Identity and opportunity, where the question is whether the event happened at all or whether the accused was involved.
- Charter issues, including how a statement was obtained and whether police followed the rules.
- Delay: cases in the Superior Court generally have to be completed within 30 months of the charge, and within 18 months in the Ontario Court of Justice.
When the Crown proceeds by indictment, the accused can often choose a trial by judge alone or by judge and jury in the Superior Court. That choice is strategic and should be made with care.
Immigration, work and family
A sexual assault conviction can lead to removal proceedings for a permanent resident and affect many professional licences and jobs. Release conditions can also affect where you live and your contact with children. We deal with these issues as part of the defence, not as an afterthought.
Talk to a criminal defence lawyer in Mississauga today
The earlier we're involved, the more options you have. We answer calls after hours, so call now or request a call back.
Frequently asked questions
Should I give police my side of the story?
Not before speaking to a lawyer. Police interviews are recorded and can be used against you, and you have the right to remain silent. A lawyer can advise you on whether, and how, to respond.
The allegation is from years ago. Can I still be charged?
Yes. There's no time limit for prosecuting sexual assault when the Crown proceeds by indictment. Older allegations raise their own evidence issues, which we examine closely.
Will I have to register as a sex offender?
Only if you're convicted of a designated offence. Since 2023, registration is automatic only in some cases, such as repeat offenders. In other cases, it's ordered in most situations, but the judge can decline in limited circumstances.
Can I use the complainant's text messages in my defence?
Often, but some private records and evidence of other sexual activity require a court application before they can be used. Don't share them with anyone except your lawyer.
Will this be kept confidential?
Everything you tell us is protected by solicitor-client privilege. Court proceedings are public, although complainants' identities are protected by publication bans.
Do you accept Legal Aid certificates?
We consider Legal Aid Ontario certificates on a case-by-case basis. Tell us when you call if you have a certificate or have applied for one.
Can we speak in Urdu, Hindi or Punjabi?
Yes. We meet clients in English, Urdu, Hindi and Punjabi.
Related guides
Other charges we handle
This page is general information about Ontario law, not legal advice, and reading it doesn't create a lawyer–client relationship. Laws change, so please speak with us about your situation. Read our full disclaimer.