Cory Wilson has extensive experience in defending sexual assault, sexual interference and other sexual-related criminal offences.

Sexual assault is an incredibly serious offence that often carries lengthy periods of jail if convicted. Just being accused of sexual assault carries a significant stigma that can irreparably damage your reputation. For these reasons, it is important that you hire the right criminal lawyer to properly defend you. Cory Wilson has defended countless clients charged with sexual assault serving Calgary, Okotoks, Airdrie, Strathmore, Cochrane, Canmore, Didsbury, Medicine Hat, Lethbridge, Grand Prairie, and Turner Valley.

Calgary sexual assault lawyers

What is Sexual Assault?

Sexual assault is an assault committed in the circumstances of a sexual nature such that the sexual integrity of the victim is violated. What does that mean? Simply put, sexual assault can range from pinching a person’s buttocks to full penetration rape. The more significant the sexual assault, the greater the potential punishment may be. Circumstances of the offence include the part of the body touched, nature of the contact, the situation in which it occurred and words are spoken or gestures are made.

Sexual assault can be committed in three ways: non-consensual touching, threats by words or gesture and accosting a person while openly carrying a weapon. The most common form of sexual assault prosecuted is by non-consensual touching.

There are three offences of sexual assault in the Criminal Code:

  • Section 271– Sexual Assault;
  • Section 272– Sexual Assault with a Weapon, Threats to a Third-Party or Causing Bodily Harm.
  • Section 273– Aggravated Sexual Assault

The offence under section 272 can occur in the following ways:

  • Carries, uses or threatens to use a weapon or an imitation of a weapon;
  • Threatens to cause bodily harm to a person other than the complainant;
  • Causes bodily harm to the complainant; or
  • Is a party to the offence with any other person

Aggravated sexual assault occurs when an accused, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.

For the Crown Prosecutor to prove sexual assault beyond a reasonable doubt (when it involves touching which is the most common form), they must prove:

  • The touching;
  • The touching was of a sexual nature; and
  • The complainant did not consent to the touching

Defences to Sexual Assault

Like any other criminal offence, the prosecutor must prove certain elements in order to establish guilt beyond a reasonable doubt. Sexual assault is established by the proof of intentional touching, the sexual nature of the contact and the absence of consent.

Defences to sexual assault depend on the circumstances of each case. Depending on the allegations, three potential defences are:

  • The sexual act did not occur;
  • The sexual act occurred but the complainant consented;
  • The sexual act occurred, the complainant did not consent but the accused had an honest but mistaken belief in consent.

 The sexual act did not occur

Sexual assault has been described as the most under-reported and most over-reported offence. This means that many victims of sexual assault never report the offence to the police for a multitude of reasons. It is also over-reported in that complainants either make a false report of sexual assault or as is often the case with very young children, a complainant has come to believe the sexual assault occurred when it in fact did not. Unless an accused has a plane ticket showing they were out of the country on the exact day of the alleged offence, it is very likely that the accused will have to testify in his or her own defence that the act was not committed.

The sexual act occurred but the complainant consented

In some circumstances, consent existed at the time of the sexual act but then for various reasons, the complainant falsely claims that he or she did not actually consent. This is a different defence to mistaken belief in consent because the defence is based almost entirely on attacking the credibility of the complainant.

Mistaken belief in consent

The defence of mistaken belief in consent is available where the complaint denied there was consent or there was an incapacity of consent which was interpreted by the accused as consent. The accused must also show that there was evidence of ambiguity or equivocality showing the possibility of mistaken belief as long as the accused was not being willfully blind or reckless as to consent.

In order to make out honest but mistaken belief in consent, the defence requires:

  1. evidence that the accused believed the complainant was consenting;
  2. evidence that the complainant in fact refused consent, did not consent, or was incapable of consenting; and
  3. evidence of a state of ambiguity which explains how lack of consent could have been honestly understood by the defendant as consent, assuming he was not willfully blind or reckless to whether the complainant was consenting, that is, assuming that he paid appropriate attention to the need for consent and to whether she was consenting or not.

To demonstrate an honest but mistaken belief in consent, the accused must show that reasonable steps to ascertain consent were taken and that the complainant communicated consent to engage in the sexual act. What constitutes reasonable steps depends on the totality of the circumstances and is evaluated on a case by case basis.

In order to determine mistaken belief in consent, the judge or jury must determine the circumstances known to the accused at the time of the sexual act. Then, the judge or jury must determine whether a reasonable person aware of the same circumstances would have taken further steps before proceeding with the sexual act.

What is the age of consent in Canada?

The age of consent in Canada is 16. However, if a person is 12 or 13, they are legally able to consent to sexual activity with someone who is less than two years older than them as long as that person:

  • Is not in a position of trust or authority towards them
  • Is not in a relationship of dependency

If a person is 14 or 15, they can legally consent to sexual contact with someone who is less than 5 years older than them, as long as that person:

  • Is not in a position of trust or authority towards them
  • Is not in a relationship of dependency

Sexual Assault FAQs

  1. What is the age of consent?
  2. What is sexual assault?
  3. What is mistaken belief of consent?
  4. What is consent?
  5. What are defences to sexual assault?

Cory Wilson is a criminal defence lawyer based in Calgary. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no-obligation consultation.

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Tel: 403-978-6052