Sexual Assault

Sexual Assault (General) – S.271 of the Criminal Code of Canada

Summary of the Offence

Offences relating to sexual assault are found in Part VIII of the Criminal Code. In Canada, there are three levels of sexual assault:

1. General sexual assault under s.271 of the Criminal Code
2. Sexual assault with a weapon, threats to a third party, or causing bodily harm under s.272
3. Aggravated sexual assault under s.273

Sexual assault generally refers to any assault under s.265(1) that is committed in circumstances of a sexual nature such that the complainant's sexual integrity is violated. Sexual assault occurs when someone engages in unwanted sexual touching without the voluntary consent of the other person.

The purpose of sexual assault-based offences is to "protect sexual autonomy" (R v Hutchison, 2014 SCC 19).

Severity of the Offence

General sexual assault is a hybrid offence, meaning the Crown can choose to proceed by indictment or summarily, depending on the circumstances.

• General sexual assault is a hybrid offence, which gives the Crown the option to proceed by summary conviction or by indictment.
• Sexual assault with a weapon and aggravated sexual assault are straight indictable offences, meaning the Crown must proceed by indictment without the option of a summary conviction.

A summary offence typically involves a less serious crime with lower penalties, while an indictable offence deals with more serious crimes and harsher penalties.

Examples of Sexual Assault

• Unwanted kissing or forced oral contact
• Unwanted sexual touching (grabbing, groping, or rubbing)
• Unwanted oral-genital contact
• Unwanted vaginal or anal penetration
• Sexual contact during medical treatment without consent
• Coerced sexual activity

Elements of the Offence

To convict someone of sexual assault, the Crown must prove, beyond a reasonable doubt, both the actus reus (guilty act) and mens rea (guilty mind).

The Guilty Act (Actus Reus)

The actus reus of sexual assault is unwanted sexual touching which can be established through three elements (R v Ewanchuk):

1. Touching (or the threat of touching) - done voluntarily
2. Sexual nature of the touching
3. Absence of consent

Whether the touching is of a sexual nature is determined using an objective test—how a reasonable person would view the situation. The touching does not need to be on a sexual part of the body (R. v. Dinardo, [2008] SCC).

The absence of consent is judged subjectively, meaning the complainant's state of mind at the time of the touching is considered. Consent, according to s.273.1, must be a voluntary agreement to engage in the sexual activity, and s.265(3)and s.273.1(2) provide what does not qualify as consent.

Persons under the age of 16 cannot legally give consent in Canada, as the age of consent is 16 years old.

The Guilty Mind (Mens Rea)

According to R v Ewanchuk (1999 SCC), the mens rea for sexual assault is established if the accused:

• Intended to touch the complainant, or
• Was reckless or willfully blind to the lack of consent.

Since sexual assault is a general intent offence, the Crown only needs to prove that the accused intended to touch the complainant to satisfy the basic mens rea requirement.

Possible Defences

• Honest but Mistaken Belief in Consent: This defence is available if the accused believed that the complainant was consenting, and that belief was honest from an objective perspective (s.273.2(a)). There must be some evidence to support this belief. Silence does not imply consent (R v JA, 2011 SCC 28), and the accused must have taken reasonable steps to ascertain consent (R v Crangle, 2010 ONCA 451).
• No Sexual Contact: If the accused can prove that no sexual touching occurred, a crucial element of the actus reus is not met, and the accused cannot be convicted.
• Applicable Charter Arguments: Violations of the Charter of Rights and Freedoms during the arrest or investigation may support a defence. If any Charter rights were violated, it might be possible to exclude some or all of the prosecution’s evidence.

Possible Punishment If Convicted

The penalty for sexual assault depends on whether the Crown proceeds summarily or by indictment, the complainant's age, and other factors such as the use of a weapon.

S.271 – General Sexual Assault

• Complainant under 16 & Crown Proceeds by Indictment: Minimum imprisonment of 1 year and a maximum of 14 years imprisonment.
• Complainant under 16 & Crown Proceeds Summarily: Minimum 6 months imprisonment and a maximum of 2 years less a day.
• Complainant over 16 & Crown Proceeds by Indictment: No minimum term; maximum imprisonment of 10 years.
• Complainant over 16 & Crown Proceeds Summarily: No minimum term; maximum imprisonment of 18 months.

S.272 – Sexual Assault with a Weapon, Threats, or Bodily Harm

• With a restricted/prohibited firearm or related to a criminal organization:
  • Minimum 5 years imprisonment for a first offence
  • Minimum 7 years imprisonment for a second offence
  • Maximum 14 years for either 
• With a non-restricted firearm: Minimum 4 years; maximum 14 years
• Complainant under 16: Minimum 5 years. However, you could face a maximum penalty of life imprisonment
• Complainant over 16: Maximum 14 years imprisonment

S.273 – Aggravated Sexual Assault

• With a restricted/prohibited firearm or related to a criminal organization:
  • Minimum 5 years for a first offence
  • Minimum 7 years for a second offence
  • Maximum life imprisonment
• With a non-restricted firearm: Minimum 4 years; maximum life imprisonment
• Complainant under 16: Minimum 5 years; maximum life imprisonment
• Complainant over 16: Maximum 14 years imprisonment in jail with no mandatory minimum sentence

Additional Consequences

If convicted of sexual assault, the offender will also be required to register with the National Sex Offender Registry, in accordance with the National Sexual Offender Information Registry Act (SOIRA).