QUICK TAKEAWAY
Sexual Assault, as defined by the Canadian Criminal Code under s.271, refers to non-consensual sexual contact, which can range from unwanted groping or kissing to engaging in sexual activities with someone underage, asleep, unconscious, or simply unwilling. This violation of sexual integrity can even include actions between spouses. The determination of sexual assault involves several factors, such as the part of the body touched, the nature of contact, circumstances, and usage of force, with the act not necessarily involving sexual pleasure. Women constitute the largest group of complainants. Despite the grave consequences, which can include jail time and inclusion in sex offender databases, many of these cases remain unreported or are dismissed. For a conviction, the prosecutor must prove the accused's responsibility and the offence's occurrence. The charge can be treated as a more serious indictable offence or a less severe summary conviction, each carrying different penalties.
Table of Contents:
What is 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.
The test for sexual assault was established in a 1987 decision by the Supreme Court of Canada (SCC) R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 SCR 293. It came after a New Brunswick man entered his neighbour's home without an invitation and groped a 15-year-old girl. He was charged with sexual assault and found guilty at trial, with that conviction reduced to common assault on appeal, before the SCC restored the conviction.
In its reasoning, the court set down the test that is used to decide whether a sexual assault occurred include. That includes the body part that was touched, the nature of the contact, the circumstances around the event and whether any force or coercion was used.
Consent plays an important role in a sexual assault allegation. Subsection 273.1(2) of the Criminal Code states no consent is obtained if it came from someone other than the complainant, if you are abusing a position of trust or if the other person indicates they do not agree with the sexual advances you are making.
Implied consent such as the alleged victim's silence or inaction is not a defence for sexual assault, according to a Supreme Court R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330.
The accusation of sexual assault can be 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.
Sexual Pleasure is Not a Factor
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. There is also an Ontario Youth Justice Court R. v. B.(B.), 2006 ONCJ 34 (CanLII) judgment where a male student was found guilty of sexual assault after he aimed a laser pointer at a female classmate’s breast in an auto shop class and then groped her.
Many Sex Assaults are Unreported or are Unfounded
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.
What is Needed to Convict
Like any other criminal case, the Crown prosecutorLawyers who prosecutes charges on behalf of the Crown must establish beyond a reasonable doubtThe standard that must be exceeded to find someone guilty 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.
Treated as a Summary Conviction or Indictable Offence
Sexual assault is a hybrid offenceAn offence prosecuted either as a summary conviction or as an indictable offence, which allows the Crown to proceed with the charge as an indictable offenceIndictable offences are more-serious criminal offences or by summary convictionUsed for lesser offences. Being found guilty of an indictable offence carries penalties that are more severe than summary conviction.
Sexual Assault Penalties
Under s.271 of the Code, if you commit a sexual assault and the Crown proceeds as an indictable offence, you will face a maximum prison term of 10 years. If the victim is under the age of 16 years, there is a minimum one-year jail term and a maximum penalty is 14 years behind bars.
If the Crown proceeds by summary conviction, you may face up to 18 months in jail if the victim is under 16 years. The maximum sentence is two years less a day while the minimum jail term is six months.
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Hinkson Law
Justin Toh, Barrister & Solicitor
Stellar Law Professional Corporation
Douglas J. Spiller
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Matthew Eaton-Kent
Glossary of Legal Terms
Consent
The voluntary agreement of the complainant to engage in the sexual activity in question.
Crown prosecutor
Lawyers who act for the federal, provincial and territorial governments and prosecute people accused of crimes on behalf of the Crown.
Hybrid offence
Hybrid offences fall between a summary and an indictable offence. The Crown prosecutor chooses whether to treat the offence as a summary or indictable offence.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Reasonable doubt
The Supreme Court of Canada has said that reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities” and “that something less than absolute certainty is required, and that something more than probable guilt is required."
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
