Sexual Assault Offences Explained

Facing any criminal charge can have a profound impact on your life. However, there is a tremendous stigma attached to allegations of sexual assault, even if the claims are later proven false. Your reputation can be irreparably damaged, affecting your personal and professional relationships.

There are three levels of sexual assault in the Criminal Code and can result in severe punishments. Along with the potential for a lengthy jail sentence, you will be placed on the federal and provincial sex offender registries for a minimum of 10 years and up to life. Most convictions will also result in an order compelling you to provide a DNA sample that will be kept in the DNA Data Bank for use in potential future investigations.

Because of recent changes in the law, it can be more difficult to obtain records and other evidence that might be essential to defending yourself at trial. You can also face hurdles when asking questions in cross-examination that intrude on the privacy of the alleged victim. When facing any charge of sexual assault, it is essential to seek legal advice from an experienced lawyer who understands the complex nature of the offence and can build a defence against these serious allegations. When your future is on the line, contact my office for a free initial consultation.

What is sexual assault?

The Criminal Code defines any touching of another person without their consent where the contact is of a sexual nature, or where the sexual integrity of the victim is violated as sexual assault. Sexual assault is not about sex – it is a form of physical and psychological violence.

Sexual gratification is not required for you to be charged with the offence, which can include forced or unwanted touching, kissing, anal or vaginal penetration and oral sex. It also includes sexual activity with someone who is unconscious or asleep and sex with someone too young to consent.

Statistics Canada reports that one in three females and one in six males will experience sexual assault at some point in their life.

In the 1987 decision R. v. Chase, the Supreme Court of Canada (SCC) ruled that sexual assault is an act of a sexual nature that violates a victim’s sexual integrity and is not based solely on contact with any specific part of the body.

The case involved the sexual assault conviction of a man who entered his neighbour’s home uninvited and grabbed a 15-year-old girl’s breasts.

“The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant,” the SCC judgment states. “The accused's intent or purpose as well as his motive, if such motive is sexual gratification, may also be factors in considering whether the conduct is sexual.

Implicit in this view of sexual assault is the notion that the offence is one requiring a general intent only. In the present case, there was ample evidence before the trial judge upon which he could find that sexual assault was committed. Viewed objectively in the light of all the circumstances, it is clear that the conduct of the respondent in grabbing the complainant's breasts constituted an assault of a sexual nature."

Studies show the vast majority of sex assaults go unreported. In fact, the Department of Justice states only five percent of sexual assaults are reported to police, with only one to two per cent of “date rapes” leading to a police report. However, police saw the number of sexual assault complaints rise dramatically in Canada after the #MeToo movement went viral in 2017.

How does consent affect sexual assault allegations?

Consent is an essential consideration in any sexual assault allegation. According to the Supreme Court in R. v. Ewanchuk, implied consent such as the alleged victim’s silence or inaction is not a defence for sexual assault.
Subsection 273.1(2) of the Criminal Code states consent is not obtained:

  • where the agreement is expressed by a person other than the victim;
  • where the complainant is incapable of consenting;
  • where the accused abuses a position of trust, power or authority to induce the victim to engage in the activity;
  • where the victim expresses, by words or conduct, a lack of agreement; or
  • where the victim, having consented to engage in sexual activity, communicates by words or conduct their decision to discontinue to engage in the activity.

The penalties for sexual assault can be severe

If you are charged with sexual assault under s.271 of the Code, you could face a prison term of up to 10 years if the Crown proceeds as an indictable offence. That custodial term increases to a maximum of 14 years if the victim is under the age of 16 years. There is a minimum one-year jail term for sexually assaulting someone under 16.

Sexual assault with a weapon carries a maximum prison sentence of 14 years. If the victim is under 16 there is a minimum punishment of five years in custody with a maximum term of life in prison. Section 272 (1) of the Code defines sexual assault with weapon as carrying, using or threatening to use a weapon or an imitation of a weapon during commission of the offence. You can also face prosecution if you cause bodily harm to someone, threaten to cause bodily harm to a person other than the victim, choke, suffocate or strangle the victim, or if you are an accomplice while someone is sexually assaulting a victim with a weapon.

If you maim, disfigure, wound, or endanger the life of someone during a sexual assault you can be charged with aggravated sexual assault under Section 273 (1). If you use a firearm or if any firearm is used and the crime is committed for the benefit, under the direction, or in association with a criminal organization, a minimum five-year prison sentence can be imposed for a first offence. There is a maximum term of life imprisonment. Under the Criminal Code, there is a minimum prison term of five years if the complainant is under the age of 16 with a maximum term of life in custody.

You need an experienced lawyer on your side

Often in sexual assault charges, the case comes down to whose version of the event will be believed at trial. DNA evidence may be available to the prosecutor but that is not necessarily proof that an unwanted sexual act occurred. Evidence such as phone records may be available to establish your innocence. I have a proven track record in defending those charged with sexual assault. Read my Criminal Case Decisions here for more. If you have been charged with sexual assault, contact me for a free initial consultation.