What is Sexual Assault?​

This article is a brief and general overview about Sexual Assault. Sexual Assault is defined under section 271 of the Criminal Code of Canada. Sexual Assault is defined as any non-consensual touching of a sexual nature, and can range from seemingly minor acts like unwanted touching or kissing to move severe acts such as coerced sexual acts and rape. The courts interpret these actions based on the circumstances of the case, intent, and the absence of consent, thereby making the definition of the offence broad in order to capture a wide range of behaviours. 

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Under the Criminal Code, there are 3 types of Sexual Assault: 

i) General Sexual Assault (as covered by Section 271 of the Criminal Code of Canada).

ii) Sexual Assault with a weapon, threats to a third party or causing bodily harm (as covered by Section 272 of the Criminal Code of Canada). 

iii) Aggravated Sexual Assault (as covered by Section 273 of the Criminal Code of Canada). 

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It is important to note that if the victim (or complainant) is under the age of 16, the offence is considered a very serious offence, and as a result, there are mandatory minimum sentences that apply. Furthermore, if the victim is also under the age of 16, it can also lead ot another charge of Sexual Interference. ​

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What are some examples of Sexual Assault ?​

Some examples of Sexual Assault include: 

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a) Unwanted kissing

b) Unwanted sexual touching

c) Rape

d) Contact of a sexual nature during a medical treatment

e) Coerced sexual contact

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What are the legal elements needed to prove Sexual Assault?​

For every criminal case, the Crown must prove at least 4 things: 

1. Identity: The Crown must prove that you are the person who committed the crime. 

2. Jurisdiction: You are being charged in the correct court. 

3. Date: The Crown must prove the date when the crime took place when the police say it did. 

4. The elements of the Crime. 

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In this case, the elements of Sexual Assault are:

a) That you (the accused) intended to apply force (meaning that act involved intentional physical contact).

b) That the assault occurred in circumstances of a sexual nature. 

c) That the victim (complainant) did not consent to the contact. 

d) That you (the accused), knew or was accused or should have known that there was no consent. ​​​​​

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How do courts determine Sexual Intent?

In order to determine whether the act was sexual, Canadian courts consider and review the overall context, and not just the physical act. Some of the factors the court places emphasis on include: 

1. The body part touched and the manner in which it was touched. 

2. Any words spoken or gestures made during the incident. 

3. Whether a reasonable observer would view the act as sexual. 

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What is Consent?

In the context of Sexual Assault, 'consent' is one of the most important factors. If valid consent is given, then no sexual offence has occurred. However, the absence of consent or the invalidity of consent is one of the key elements that the Crown has to prove in order to secure a conviction of Sexual Assault. The courts have also emphasized that consent must be active, ongoing, and informed. This means that simply remaining silent or not explicitly stating 'no' does not constitute legal consent. 

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Under Section 273 of the Criminal Code, consent is defined as "the voluntary agreement of the complainant to engage in the sexual activity in question". This means that affirmative consent must be given throughout the incident, and that clear, conscious, and revocable consent must be given to each specific sexual act. 

 

Furthermore, under Section 273 of the Criminal Code, the law also defines what does not constitute as valid consent. Some examples of situations where no consent is given includes: 

1. Where the agreement is expressed by the words or conduct of a person other than the complainant. 

2. Where the complainant is unconscious. 

3. Where the complainant is incapable of consenting to the activity for any reason (such as due to drugs, intoxication, or unconsciousness).

4. Where the accused induces the complainant to engage in the activity by abusing a position of trust, power, and/or authority. 

5. Where the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

6. Where the complainant, having consented to engage in sexual activity, expresses by words or conduct, a lack of agreement to continue to engage in the activity. ​​

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In any of the scenarios outlined above, the law views the sexual activity as non-consensual and therefore criminal in nature.  

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When is Consent invalid?

In the context of Sexual Assault in Canada, it is extremely important to note that even though a person verbally consents to sexual activity, their consent may be considered legally invalid in some special circumstances. Some examples of these extenuating circumstances include: 

1. Where the complainant was manipulated, coerced, or pressured into agreeing. 

2. Where the complainant was unconscious or otherwise physically unable to provide meaningful consent. 

3. That you (the accused) did not take reasonable steps to ensure consent was present, especially if there were signs of reluctance or distress. 

4. That you (the accused) was wilfully blind or reckless as to whether consent was given. 

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It is also important to note that the Supreme Court of Canada (SCC) ruled that in R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330. Based on this landmark decision, the SCC determined that a belief in consent must be honest and reasonable, and that a mistaken belief cannot be used as a defence unless the accused took concrete steps to confirm that the other party was consenting. In other words, consent cannot be implied, and must be affirmative consent.  

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​What are the penalties for Sexual Assault? ​

Sexual Assault is a very serious offence in Canada. It is also important to note that the punishment for Sexual Assault is based on whether the Crown chooses to proceed by summary or by indictment; the type of Sexual Assault, and the age of the victim. There are 3 types of Sexual Assault in Canada, and for each charge of Sexual Assault there are slightly different penalties. 

 

Under the Criminal Code, there are 3 types of Sexual Assault: 

i) General Sexual Assault (as covered by Section 271 of the Criminal Code of Canada).

For General Sexual Assault, it is important to note that if the complainant (victim) is under the age of 16, there is a mandatory minimum sentence of 1 year of prison, and a maximum sentence of 14 years imprisonment. If the complainant is over the age of 16, there is no minimum mandatory sentence but conviction is most likely to result in imprisonment. 

ii) Sexual Assault with a weapon, threats to a third party or causing bodily harm (as covered by Section 272 of the Criminal Code of Canada). 

For Sexual Assault with a weapon or causing bodily harm, if the the complainant is under the age of 16, the mandatory minimum sentence is 5 years, with a maximum imprisonment sentence of 14 years. If the complainant is above the age of 16, then the Crown may proceed under a summary conviction, in which case, there is no set mandatory minimum sentence. 

iii) Aggravated Sexual Assault (as covered by Section 273 of the Criminal Code of Canada). 

This is the most serious type of Sexual Assault, and as a result, the penalties for this offence are very serious as well. The maximum imprisonment sentence for this charge is life imprisonment, and depending on the circumstances, the mandatory minimum sentence is 4 to 5 years.

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Common FAQs:

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1. What do you do if you have been charged with Sexual Assault? ​

If you have been charged with Sexual Assault by the police, first contact us. Once retained, Shankar Law Office will continue to advise and guide you so that you can receive the best legal defence for this charge.

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2. What are some possible legal defences for Sexual Assault: 

Some of the possible legal defences for Sexual Assault include:

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 a) Disputing lack of Consent:  In Sexual Assault cases, many of these cases may also involve the use of drugs or alcohol. It is important to note that drunken or drug-induced consent is still consent unless, the complainant was so incapacitated by the drugs or alcohol that they did not have the ability to consent. This can then lead to potential situations where the accuser may claim to have been sexually assaulted, when, in reality, the sex was consensual. 

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b) Lack of Evidence: If the Crown is unable to prove beyond a reasonable doubt that Sexual Assault was committed, then the defendant should not be convicted of the charge. 

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c) Innocence: In some cases, someone accused of Sexual Assault can beat the charge if the defence presents evidence that the accused is actually innocent of the charge, by providing an alibi, DNA evidence, or a misidentification of the accused by a witness. 

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3. What are the close-in-age exceptions for Minors: 

In Canada, individuals under the age of 16 are not legally capable of consenting to sexual activity. However, according to Section 150.1 of the Criminal Code of Canada, there are exceptions to the age of consent rule. In this section of the Criminal Code, it includes close-in-age exemptions to prevent the criminalization of consensual sexual activity amongst teenagers who are close-in-age and in maturity level. In Canada, the age of consent is 16 years, however, there are two exceptions to where this age can be lowered. 

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1) The first close-in-age exception is made for individuals who are 12 or 13 years old. According to this exception, individuals that are either 12 or 13 years old can only consent to having sexual activity with someone who is less than 2 years older. 

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2) The second close-in-age exception is made for individuals who are 14 or 15 years old. According to this exception, individuals that are either 14 or 15 years old can legally engage in sexual activity under two conditions: a) The other partner is no more than 4 years older; and b) There is no relationship of authority, trust, or dependency (such as a teacher-student relationship).