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Sexual Assault Charges

Sexual assault is prosecuted under three separate provisions of the Criminal Code. Which one applies determines the maximum penalty, whether the Crown can proceed summarily, whether a mandatory minimum sentence applies, and how long any sex offender registration lasts.

Consent is the central issue in most of these cases, and it is defined by statute rather than by what the parties assumed at the time. Foote Law defends sexual assault charges throughout Ontario, from the first contact with police through bail, disclosure, and trial.

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How Foote Law Can Help

Foote Law acts for people charged with sexual offences at every stage of the proceeding:

  • Advice before any police interview, including on the right to remain silent.
  • Representation at the bail hearing and preparation of a workable release plan.
  • Review of Crown disclosure, including statements, forensic evidence, and communications between the parties.
  • Applications to vary release conditions that have become unworkable.
  • Charter applications where the detention, search, or questioning was unlawful.
  • Applications under the sexual history and private records provisions of the Criminal Code, which carry strict notice and filing requirements.
  • Negotiation with the Crown on resolution where the facts support it.
  • Trial representation in the Ontario Court of Justice and the Superior Court of Justice.

Foote Law accepts Legal Aid Ontario certificates and Employee Assistance Program referrals. Call Foote Law in Orangeville at 519-940-8309 or in Fergus at 519-772-6139. Foote Law serves clients in Orangeville, Fergus, Brampton, Shelburne, Alliston, Barrie, Owen Sound, Newmarket, Guelph, Centre Wellington, and throughout the Greater Toronto Area, in person and virtually.

The Three Charges

The Criminal Code divides sexual assault into three levels of seriousness. Each is a separate offence with its own penalty structure.

Sexual assault, section 271. This is the base offence. It is a hybrid offence, meaning the Crown can choose to prosecute it either by indictment or by summary conviction.

Sexual assault with a weapon, threats to a third party, or causing bodily harm, section 272. This offence also covers a sexual assault in which the accused chokes, suffocates, or strangles the complainant, or commits the assault together with another person. It can be prosecuted only by indictment.

Aggravated sexual assault, section 273. This applies where the accused wounds, maims, or disfigures the complainant, or endangers the complainant's life. It can be prosecuted only by indictment.

The distinction has real consequences. It determines the maximum sentence, whether a summary election is available, whether a mandatory minimum applies, and the length of any registry order.

What the Crown Must Prove
& Consent in Law

What the Crown Must Prove

The Crown must prove each element of the offence beyond a reasonable doubt. It must establish that the accused is the person who committed the act, that the touching was intentional and sexual in nature, and that the complainant did not consent. It must also prove that the accused knew the complainant was not consenting, or was reckless or wilfully blind to that fact. Where a defence of honest but mistaken belief in communicated consent has an air of reality, the Crown must disprove it. If the Crown fails on any one of these elements, the accused must be acquitted.

The Supreme Court of Canada set out this framework in R v Ewanchuk, [1999] 1 SCR 330, which also confirmed that there is no such thing as implied consent to sexual activity.

Several evidentiary rules apply to these trials and not to others. Under section 274, corroboration is not required for a conviction, and a judge may not instruct a jury that it is unsafe to convict without it. Section 275 abolished the old common law rules about recent complaint. Under section 276, evidence of the complainant's other sexual activity is not admissible to support an inference that the complainant was more likely to have consented or is less worthy of belief. Courts refer to these two prohibited inferences as the "twin myths."

Consent in Law

Section 273.1 defines consent as the voluntary agreement of the complainant to engage in the sexual activity in question. Consent must be present at the time the activity occurs, and it can be withdrawn at any point. Section 273.1(2) sets out circumstances in which no consent is obtained, whatever the appearance of agreement:

  • The agreement is expressed by the words or conduct of someone other than the complainant.
  • The complainant is unconscious.
  • The complainant is incapable of consenting for any other reason.
  • The accused induces the complainant to engage in the activity by abusing a position of trust, power, or authority.
  • The complainant expresses, by words or conduct, a lack of agreement to engage in the activity.
  • The complainant, having consented, expresses by words or conduct a lack of agreement to continue.

Whether no consent was obtained in these circumstances is a question of law. The list is also not exhaustive: section 273.1(3) confirms that consent can be absent in other situations as well.

Mistaken Belief Defence, Bail Conditions
& Whether the Accused's Name Becomes Public

01

Limits on the Mistaken Belief Defence

Section 273.2 restricts when an accused can rely on a mistaken belief that the complainant consented. The defence is unavailable where the belief arose from the accused's self-induced intoxication, from recklessness or wilful blindness, or from any circumstance in which the law says no consent is obtained.

It is also unavailable where the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. Nor is it available where there is no evidence that the complainant's voluntary agreement was affirmatively expressed by words or actively expressed by conduct. In practice, silence or passivity is not consent, and consent to one sexual act is not consent to another.

02

Bail and Release Conditions

Release conditions on a sexual offence charge are strict, and they are imposed before any finding of guilt.

A condition prohibiting contact with the complainant is imposed in almost every case. Other common conditions include a weapons prohibition, surrender of a passport, a curfew or house arrest, a residence requirement, a surety to supervise the accused, and restrictions on internet or social media use.

Where the complainant lives with the accused, a no-contact condition means the accused cannot return home while the charge is outstanding. Breaching any condition is a separate criminal offence under section 145. A breach also shifts the onus to the accused to justify release on any later charge, which makes release considerably harder to obtain.

03

Whether the Accused's Name Becomes Public

Many people who are charged assume their identity will be protected. It is not. Section 486.4 provides for a publication ban on any information that could identify the complainant or a witness, and the court must make that order when the complainant, the Crown, or a witness under 18 applies for it.

There is no equivalent protection for the accused. No provision of the Criminal Code allows a court to ban publication of an accused person's name for the accused's own benefit. An accused's identity is protected only where publishing it would identify the complainant, which usually arises where the two are related or share a household. Breaching a publication ban is itself an offence under section 486.6.

Penalties on Conviction

Section 271

When the Crown proceeds by indictment, sexual assault carries a maximum of 10 years' imprisonment. Where the complainant is under 16, the maximum rises to 14 years and a mandatory minimum of one year applies. When the Crown proceeds summarily, the maximum is two years less a day, and a mandatory minimum of six months applies where the complainant is under 16.

The summary maximum for an adult complainant was 18 months until July 18, 2026, when the Protecting Victims Act (S.C. 2026, c. 19) raised it to two years less a day. Sources published before that date give the earlier figure. Under section 11(i) of the Charter, an accused is entitled to the lesser punishment, so the 18-month maximum continues to apply to offences committed before the change.

Section 272

Section 272 is indictable only. The maximum is 14 years, or imprisonment for life where the complainant is under 16. Mandatory minimum sentences apply in the following circumstances:

  • Five years where a restricted or prohibited firearm is used, or where any firearm is used in connection with a criminal organization. This rises to seven years on a second or subsequent offence.
  • Four years where any other firearm is used.
  • Five years where the complainant is under 16.

Section 273

Section 273 is indictable only, and the maximum is imprisonment for life in every case. The same mandatory minimums apply as under section 272: five years, rising to seven on a subsequent offence, for a restricted or prohibited firearm or a criminal organization offence; four years for any other firearm; and five years where the complainant is under 16.

The Two Registries, What Else Follows a Conviction
& Why Representation Matters

The National Sex Offender Registry

  • The national registry is governed by the Sex Offender Information Registration Act and sections 490.011–490.032 of the Criminal Code. Following the Supreme Court of Canada's decision in R v Ndhlovu, 2022 SCC 38, which struck down automatic registration for every offender, Parliament amended these provisions in 2023.
  • Under section 490.012, registration is now automatic in two situations: where the offence was prosecuted by indictment, resulted in a sentence of two years or more, and involved a complainant under 18; and where the offender has a previous conviction for a designated offence. In every other case, the court must make the order unless the offender satisfies the court that registration would have no connection to the registry's purpose or that its impact would be grossly disproportionate.
  • Under section 490.013, the order lasts 10 years where the offence was prosecuted summarily, 20 years where the maximum sentence is 10 or 14 years, and life where the maximum is life or the offender has more than one designated conviction.
  • A registrant must report in person annually and whenever key information changes, including address, employment, vehicle, and identifying marks, and must give notice of travel plans. The database is not public and is accessible only to police.
  • Under section 490.015, an offender may apply to terminate the order after five years on a 10-year order, 10 years on a 20-year order, and 20 years on a lifetime order.

Ontario's Registry

  • Christopher's Law (Sex Offender Registry), 2000 creates a separate provincial registry for Ontario residents convicted of designated sex offences, including sections 271, 272, and 273.
  • Registration lasts 10 years where the maximum sentence for the offence is 10 years or less, and for life where the maximum is greater or the person has more than one sex offence conviction.
  • There is no court application to end a provincial registration early. The obligation ends only when the period expires, on a record suspension or pardon, or if the conviction is overturned.

What Else Follows a Conviction

  • DNA order. Sexual assault is a primary designated offence under section 487.04, so the court must order the offender to provide a DNA sample on conviction. The profile is retained in the National DNA Data Bank.
  • Section 161 prohibition order. Where the complainant is under 18, the court must consider an order prohibiting the offender from attending parks, swimming areas, schools, daycares, playgrounds, and community centres, from employment or volunteer work involving a position of trust toward young people, and from contact with anyone under 18. The order can also restrict internet use. The age threshold was raised from 16 to 18 by the July 2026 amendments. Breach carries a maximum of four years' imprisonment.
  • Weapons prohibition. A prohibition under section 109 is mandatory where the offence is prosecuted by indictment. On a summary conviction, a prohibition under section 110 is discretionary but commonly imposed.
  • A criminal record. A conviction affects employment, professional licensing, volunteer positions that require a vulnerable sector check, and travel to other countries.

Why Representation Matters

  • A person facing a sexual offence charge is at a serious disadvantage without counsel, and the Criminal Code recognizes as much.
  • Under section 486.3(2), where the accused is self-represented, the court must prevent the accused from personally cross-examining the complainant if the Crown or the complainant applies, unless the proper administration of justice requires otherwise. The court appoints counsel to conduct the cross-examination instead.
  • Cross-examination is where many of these trials are decided. The applications that govern what sexual history evidence can be led and what private records can be produced also carry their own notice periods and written requirements. Missing them can prevent the defence from using that evidence at all.

Charged With
Sexual Assault?

A sexual assault charge carries consequences that can outlast any sentence imposed. These cases turn on what the Crown can prove about consent, on the reliability of the evidence, and on the applications brought before trial, so early legal advice matters. Call Foote Law in Orangeville at 519-940-8309 or in Fergus at 519-772-6139 for a confidential consultation.

519-940-8309 Orangeville 519-772-6139 Fergus
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