Sexual Assault

The Criminal Code states that if you touch another person without their consentVoluntary agreement to engage in an sexual act and the contact is of a sexual nature or where the sexual integrity of the victim is violated, you can be charged with sexual assault under s.271 of the Code. The offence can include unwanted groping or kissing, groping over the clothes, consensual sex with someone too young to consent, sexual activity with someone who is asleep or unconscious as well as sexual activity with an unwilling person. Sexual assault does not require intercourse or physical injury. The issue is whether there was intentional touching, whether the touching was sexual in nature when viewed in context, and whether the complainant consented. Canadian law does not recognize “implied consent” based only on silence, passivity, or lack of resistance. Consent plays an important role in a sexual assault allegation. Subsection 273.1(2) of the Criminal Code sets out the circumstances in which no consent is obtained. These are: the agreement came from someone other than the complainant; the complainant was unconscious; the complainant was incapable of consenting for any other reason; the accused abused a position of trust, power or authority to induce the complainant; the complainant expressed by words or conduct that they did not agree to the activity; or the complainant withdrew consent after it was given, by expressing through words or conduct a lack of agreement to continue. Subsection 273.1(3) also makes clear this list is not exhaustive. The accusation of sexual assault can ruin careers and break apart families, even if you are found not guilty. A conviction can result in a significant jail sentence plus you will be included in provincial and federal sex offender databases.

There does not need to be any sexual pleasure for a sexual assault. For example, if a parent disciplines their child by squeezing his genitals or if someone randomly touches a woman’s breasts, both can be considered sexual assault.

A 1999 General Social Survey on Victimization [PDF] (Statistics Canada) found 78 percent of sexual assaults were not reported to police, with many coming to light years later. The report states that one-third of victims felt that the police could not do anything about it. Other reasons for not reporting include the belief that police would not help them in they came forward, revenge by the offender or to avoid publicity.

Another report from Statistics Canada Unfounded criminal incidents in Canada, 2017 [PDF] states that one in seven sexual assaults reported to police in 2017 was classified as unfounded. The report stated that may be explained by increased societal awareness about various forms of sexual misconduct, including sexual assault, thanks to the #metoo campaign. A study by The Globe and Mail in 2017 revealed that one of every five sexual-assault allegations in Canada is dismissed as baseless or unfounded. What’s common in this type of case is a dispute over the facts of what happened between the complainant and the accused.

Like any other criminal case, the Crown prosecutorA lawyer who conducts a criminal prosecution on behalf of the public. must establish beyond a reasonable doubtThe high standard the Crown must meet to prove guilt. that you were responsible and that the offence took place. In many instances, that comes down to a he said/she said situation, especially if there is a dispute about the complainant giving consent. DNA evidence, such as traces of semen, may be available although its presence does not indicate if the sexual interaction was forced or was consensual.

Sexual assault is a hybrid offenceAn offence the Crown can proceed with summarily or by indictment., which allows the Crown to proceed with the charge as an indictable offenceA more serious type of Canadian criminal offence. or by summary convictionLess-serious criminal offences. Being found guilty of an indictable offence carries penalties that are more severe than summary conviction.

Under s.271 of the Code, if the Crown proceeds by indictment, the maximum sentence is 10 years in prison. If the complainant is under the age of 16 years, there is a minimum one-year jail term and a maximum penalty of 14 years.

If the Crown proceeds by summary conviction and the complainant is 16 years of age or older, the maximum sentence is two years less a day and there is no mandatory minimum. If the complainant is under the age of 16 years and the Crown proceeds by summary conviction, the maximum sentence is two years less a day and the minimum jail term is six months.

This page covers the base sexual assault offence under s. 271. Sexual assault with a weapon, threats, bodily harm, choking, or another person involved is covered under s. 272. Aggravated sexual assault is covered under s. 273.