The Law of Sexual Assault in Canada

What is The Criminal Law of Sexual Assault in Canada

Sexual Assault is a serious crime in Canada.  The mere stigma of being accused of sexual assault can irreparably damage a person’s reputation. This article is a brief and general overview of the law as it relates to the crime of sexual assault.  Those charged with sexual assault should consult a sexual assault criminal lawyer.

Sexual Assault Defined

Sexual assault is defined as any form of sexual contact without both parties’ voluntary consent.  Contrary to what most people think, sexual assault is not limited to non-consensual intercourse, it can also include non-consensual fondling, touching, or kissing.

Section 265 of the Criminal Code of Canada (“Criminal Code”) outlines the offences of assault and sexual assault as follows:

A person commits an “assault” when:

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

(2) This section applies to all forms of assault, including sexual assault,  sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

obtained where the complainant submits or does not resist by reason of the application of force to the complainant or to a person other than the complainant;

(b)  threats or fear of the application of force to the complainant or to a person other than the complainant;

(c)   fraud; or

(d)   the exercise of authority.

(3) Where the accused alleges that he believed that the complainant consented to the conduct that is the subject matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.

Consent

A common issue in sexual assault cases is whether or not the sexual activity was consensual.  Consent is the voluntary agreement of the accuser to have engaged in the sexual activity in question.  According to s. 273.1(1) of the Criminal Code, consent for sexual assault purposes is defined as the following:

273(1) Aggravated sexual assault – Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.

273.1(1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where the agreement is expressed by the words or conduct of a person other than the complainant;

(a) the complainant is incapable of consenting to the activity;

(b) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;

(c) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

(d) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the conduct.

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where:

(a) the accused’s belief in consent arose from the accused’s:

(i) self-induced intoxication, or

(ii) recklessness or wilful blindness; or

(b)the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

Was Consent Given?

In order to determine if consent was given, the Court will look at the parties’ words, conduct, and reasonable steps.  Words and conduct are important when trying to establish if the accuser consented to the sexual contact, as the Court will not accept an accuser’s silence or passivity as a form of consent; in other words, implied consent is not a defence to criminal sexual assault.  Thus, if the Court finds that the accused continued sexual conduct after the accuser indicated “No” through words or conduct, the accused’s actions can be considered reckless, and he or she can be convicted under the Criminal Code. Undoubtedly, this can be a grey area, as parties’ perceptions of events can and typically will vary a great deal.  Court’s will look at consent from the accuser’s point of view.

Furthermore, according to s. 273.2(b) of the Criminal Code, the accused must show that under the circumstances, he or she took reasonable steps in order to ascertain the accuser’s consent.  Courts have interpreted that s.273.2(b) does not require that all reasonable steps to ascertain consent be taken; but instead, just taking some reasonable steps would be sufficient.  Of course, just taking “some reasonable steps” alone will not prove consent, but even if the accused thought consent was given, and it turns out that it was not, taking some reasonable steps does provide the defence with some creditability, as it shows the judge or jury the accused thought what a reasonable person would have thought under similar circumstance, i.e. that consent was given.

However, it should be noted, a defence will come under tremendous scrutiny if the Court feels the accused was reckless, willfully blind or willfully intoxicated while taking reasonable steps to attain consent.  According to s.273.2 (a), the Court will not allow consent to be used an excuse for not recognizing that a person did not consent if the accused was reckless, willfully blind or willfully intoxicated.  For example, the Court is more prone to consider a defence, if for example the accused became drunk at a party because somebody spiked the accused’s drink without his or her knowledge.

Accuser’s Credibility

There was a time when a person accused of sexual assault had a broad range of legal weapons at his or her disposal, which could be used to attack an accuser’s credibility.  Those times are no more.  If a person is accused of sexual assault, the Court may still allow him or her to use an accuser’s prior sexual history, psychiatric or medical records as evidence that their credibility should be questioned; but these are only allowed in very limited circumstances.

Sentencing and Punishment

If an accused is found guilty and must face sentencing on a sexual assault charge the sentence could range anywhere from 18 months to 10 years.  Section 271(1) of the Criminal Code states the following:

Everyone who commits a sexual assault is guilty of:

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction and liable to imprisonment for a term no exceeding eighteen months.

A judge will consider a host of factors when it comes to the sentencing phase, such as history of offences, circumstances of the case, as well as the brutality or lack thereof regarding the assault. Each case is unique.