Sexual Assault (s. 271) Laws in Canada

What is Sexual Assault?

Sexual assault is covered under s.271 of the Criminal Code.

Canada has a broad definition of sexual assault as sexual assaults can encompass a variety of sexually related charges such as those that involve the use of violence or a weapon. Generally speaking, sexual assault includes all unwanted sexual activity.

There are three levels of sexual assault: general sexual assault, s.271 of the Criminal Code, Sexual assault with a weapon, threats to a third party or causing bodily harm, s.272 of the Criminal Code, and aggravated sexual assault, s.273 of the Criminal Code

Sexual assault is a hybrid offence in which the Crown can choose to charge by an indictment or proceed summarily. However, sexual assault with a weapon and aggravated sexual assault are indictable offences in which the Crown cannot elect to proceed otherwise.

Examples

Some common examples of sexual assault may include the following:

• Unwanted sexual touching
• Incest
• Unwanted sexual grabbing
• Unwanted kissing
• Coerced sexual contact
• Sexual contact with minors
• Forcible sodomy
• Rape
• Unwanted fondling
• Contact of a sexual nature during a medical treatment

Defences

A strong defence depends entirely on the specific facts of your case and the evidence against you.

However, some common defences to sexual assault include:

• Honest but Mistaken Belief in Consent;
• Mistake in Identity;
• Maintaining that there was no sexual contact;
• That there was consent; and/or
• Any applicable Charter Defence

Punishment

The sentence that you receive for a conviction of a sexual assault will take into account the individual circumstances of your matter. The severity of the punishment is also reliant on whether the Crown elects to proceed summarily or by indictment, the type of sexual assault perpetrated, and the age of the victim.

For a common sexual assault conviction:

• Indictment: Up to 10 years imprisonment or, if the complainant is under the age of 16, a minimum sentence of 1 year imprisonment and a maximum of 14 years;
• Summary: Up to 18 months imprisonment or, if the complainant is under the age of 16, a minimum sentence of six months and/or a $5,000 fine and a maximum of two years less a day.

However, depending on what level of sexual assault you have been convicted of, different penalties may apply.

Sex Assault Laws in Canada

Overview of the Offence

Sexual Assault is covered under s. 271 of the Criminal Code:

The term ‘sexual assault is not defined in the Criminal Code. As such, for the purposes of sexual assault, assault is defined in s. 265(1)(a) of the Criminal Code which states that:

This definition of assault is explicitly applied to sexual assault, as per s.265(2) of the Criminal Code. Thus, the Crown must first satisfy that there was an assault that occurred by meeting the definition of assault provided in s.265(1)(a) of the Criminal Code to secure a conviction of sexual assault.

Once it has been satisfied that an assault has taken place, the Crown must prove the essential elements of a sexual assault. R v Ewanchuk [1999] 1 S.C.R 330 (‘Ewanchuk’) is a seminal case on a sexual assault which provides the elements that the Crown has to prove, beyond a reasonable doubt, to secure a conviction of sexual assault. As for any criminal conviction, the Crown must prove both the actus reus and the mens rea of the offence for an accused to be found guilty.

The Guilty Act (Actus reus)

Ewanchuk provides that the actus reus of sexual assault is unwanted sexual touching.

The actus reus of sexual assault is established by proof of three elements:  

• Touching (or threat of touching);
• Sexual nature of touching; and
• Absence of consent;

The touching, or the threat of touching, must be voluntary in order to satisfy the actus reus.

In relation to the sexual nature of the touching, this element of the actus reus is determined by applying an objective test. This means that the Courts will take into consideration how the reasonable person would view the touching. The touching does have to be of a sexual part of the body. Rather, as indicated in the case of R v Dinardo, [2008] S.C.C, the sexual element of touching can arise from circumstances other than the manner in which the victim was touched.

Ewanchuk discussed how the absence of consent is an element of the actus reus that is purely subjective in nature. This means that what is taken into consideration when determining whether there was an absence of consent is the complainant’s subjective, internal state of mind at the time of the touching, at the time it occurred.

Under s.273.1 of the Criminal Code consent, for the purposes of sexual assault, is the voluntary agreement of the complainant to engage in the sexual activity in nature.

The Criminal Code, under s.265(3), provides further guidance on what consent is not for all forms of assault.

No consent is obtained where the complainant submits or does not resist by reason of:

Similarly, s.273.1(2) of the Criminal Code provides guidance on what consent is not by indicating that no consent is obtained for the purposes of sexual assault if:

Consent cannot be implied in Canada. However, often times in cases of sexual assault there are situations where it appears that there is consent, this is what is called ostensible consent. In these cases of sexual assault, the Court adopts a two-step process from the case of R v Hutchinson [2014] S.C.C 19 (“Hutchinson”) to determine whether or not there was in fact consent present.

This two-step process includes determining:

1. Whether the complainant voluntarily agreed to engage in sexual activity in question; and
2. If there was reasonable doubt for this apparent or ostensible consent, then the next step would be to determine if the consent is ineffective or vitiated because of the operation of s.265(3) or s.273.1(2) of the Criminal Code.

If consent is vitiated because of any of the factors listed in s.265(3) or s.273.1(2) of the Criminal Code, then this element of the actus reus will be satisfied and the Crown may able to secure a conviction of sexual assault if all other elements are satisfied.

Another point to note, in relation to consent, is that there may be certain situations where a person cannot legally give consent. In Canada, the age of consent is 16 years old.

The Guilty Mind (Mens rea)

Ewanchuk also provided that the mens rea element for sexual assault is satisfied when the Crown is able to prove, beyond a reasonable doubt, that there was:

• The intention to touch the complainant or being reckless or willfully blind to the lack of consent on the part of the person touched

Sexual assault is a general intent offence. This means that all the Crown needs to prove is that the accused intended to touch the complainant to satisfy the basic mens rea requirement. Additionally, the mens rea for an offence of sexual assault can be made out when the accused knew that the complainant was not saying yes but was being reckless or willfully blind.

Sexual Assault Defences

How to Beat a Sexual Assault Charge

With sexual assault charges, the availability and strength of any defence depend entirely on the specific facts of your case and the evidence against you. However, there are some common defences that can be used when defending against sexual assault charges.

Honest but Mistaken Belief in Consent

The defence of ‘Honest but Mistaken Belief in Consent’ is a form of mistake of fact and will remove any culpability if you honestly, but mistakenly, believed that you had consent.

Ewanchuk stated that “in order to cloak the accused’s actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question”. However, Ewanchuk further explained that “a belief that silence, passivity, or ambiguous conduct constitutes consent is a mistake of law and provides no defence”.

This means that you must be some evidence of ambiguity or equivocality which shows that your mistaken belief was not based on willful blindness or recklessness as to the absence of consent. In other words, there must be at least an “air of reality’ to your honest but mistaken belief.

Mistake in Identity

Depending on the circumstances of your case, a possible defence to a sexual assault charge may be to raise an identity defence. Sometimes, false accusations of sexual assault do occur, and a wrong person is charged as a result.

For example, in some cases, the complainant may not be able to clearly identify the perpetrator and end up accusing the wrong person or the authorities may have made a mistake in identifying you as the perpetrator. This would be a case of mistaken identity. In order for this defence to be raised successfully, you will have to prove that you were not present at the time of the offence. This can be done by corroborating evidence, such as an alibi, to remove you from the time of the offence.

No Sexual Contact

In order for the prosecution to secure a conviction of sexual assault, both the actus reus and the mens rea need to be satisfied. If you are able to prove that there was no sexual touching, then an essential element of the actus reus is not satisfied and you cannot be convicted of sexual assault.

Consent

Consent is often a contentious issue in sexual assault cases and forms part of the actus reus for a sexual assault offence. Therefore, if the complainant consented to the sexual touching, you cannot be convicted of sexual assault as the actus reus element of the offence is not satisfied. However, it is important to note that the complainant has to have consented to all sexual touching at the time that the touching took place. The consent also needs to be expressed as there is no such thing as implied consent. Additionally, consent cannot be granted if it is obtained by force, threats, fear, fraud, or the exercise of authority.

Charter Defences

The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights, either deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s.24(2) of the Charter.

Sex Assualt Punishment

The sentence that you receive for a conviction of a sexual assault will take into account the individual circumstances of your matter. The severity of the penalty is also reliant on whether the Crown elects to proceed summarily or by indictment, the type of sexual assault perpetrated, and the age of the victim.

s.271 Sexual Assault – Summary

If the Crown elects to proceed summarily, then you could face up to 18 months in jail for a sexual assault conviction. If the complainant is under the age of 16, then a minimum sentence of six months and/or a $5,000 fine is imposed and a maximum jail sentence of two years less a day.

You would also have available to you a discharge, suspended sentence, fine alone, fine and probation, prison, prison and fine, intermittent, fine, probation and intermittent, and a conditional sentence.

s.271 Sexual Assault – Indictment

If the Crown elects to proceed by indictment and you are convicted of a sexual assault, you could face up to 10 years in jail. However, if the complainant is under the age of 16, then you may face a minimum sentence of one year in jail and a maximum of 14 years in jail.

You would also have available to you a discharge, suspended sentence, fine alone, fine and probation, prison, prison and fine, and intermittent, fine, probation and intermittent sentence. Note that you will not have available a conditional sentence.

s.272 Sexual Assault with a weapon, threats to a third party or causing bodily harm

For a sexual assault under s.272 of the Criminal Code the Crown must proceed by indictment and has no choice to proceed otherwise.

If the sexual assault is with a restricted or prohibited firearm or with a non-prohibited firearm and relates to a criminal organization, the minimum sentence is five years in jail for a first offence or seven years in jail for the second offence. Whereas the maximum jail sentence you can receive is 14 years in jail.

For a sexual assault with using a nonrestrictive firearm, the minimum sentence is four years in jail while the maximum sentence is 14 years in jail.

If convicted of a sexual assault under s.272 of the Criminal Code and the victim is under the age of 16, then there is a minimum sentence of five years in jail, however, you could face a life imprisonment sentence.

For any convictions under s.272 of the Criminal Code, listed above, you will only have available to you a sentence which includes prison time or prison and fine. You will not have available to you a discharge, suspended sentence, fine alone, fine and probation, prison and probation, intermittent, fine, probation and intermittent, or a conditional sentence.

However, if you are convicted of sexual assault with a weapon, threats or causing harm the maximum sentence is 14 years in jail. You will have available to you a suspended sentence, fine alone, fine and probation, prison, prison and fine, and intermittent, fine, probation and intermittent sentence. Note that you will not have available a conditional sentence or a discharge.

s.273 Aggravated Sexual Assault

For a sexual assault under s.273 of the Criminal Code, the Crown must proceed by indictment and has no choice but to proceed otherwise.

For aggravated sexual assault with a restricted or prohibited firearm or with a non-prohibited firearm and relating to a criminal organization, the minimum sentence that will be imposed will be five years imprisonment for a first offence or seven years for a second offence. However, the maximum sentence is life imprisonment. You would also only have available to you a sentence with a prison term or prison and a fine.

For aggravated sexual assault using a non-restricted firearm, the minimum sentence that can be imposed is 4 years in jail, while the maximum sentence you could face is life imprisonment. You would also only have available to you a sentence with a prison term or both prison and a fine.

If you are convicted of a sexual assault under s.273 of the Criminal Code and the victim is under the age of 16, then there is a minimum sentence of 5 years in jail imposed with the maximum sentence being life imprisonment.

For any other case under s.273 of the Criminal Code, the maximum sentence is 14 years in jail and you would have available to you a suspended sentence, fine alone, fine and probation, prison, prison and fine, and intermittent, fine, probation and intermittent sentence. Note that you will not have available a conditional sentence or a discharge.

In addition to any immediate jail and/or probation sentence you receive for a conviction of sexual assault, you will also be ordered to register with the National Sex Offender Registry in accordance with the National Sexual Offender Information Registry Act (SOIRA).

Frequently Asked Questions

What is the law on sexual assault in Canada

In Canada, any unwanted sexual act done by one person to another or sexual activity without one person’s consent or voluntary agreement is a criminal offence. A sexual assault is a serious offence and if convicted can lead to jail time, even for a first-time offence. Additionally, a conviction of a sexual assault could also result in you registering with the National Sex Offender Registry.

What are the three levels of assault in Canada

The three levels of sexual assault in Canada are:

• Sexual assault, s.271 of the Criminal Code;
• Sexual assault with a weapon, threats to a third party or causing bodily harm, s.272 of the Criminal Code; and
• Aggravated sexual assault, s.273 of the Criminal Code.

Is there a time limit on sexual assault in Canada

There is no statute of limitation in relation to sexual assault charges in Canada. This means that you can be charged and convicted of a sexual assault any time after you have committed the alleged offence.

Can you go to jail for sexual assault in Canada

Sexual assault is a serious offence which is prosecuted harshly. Often times a conviction of a sexual assault will be punishable with jail time. A conviction of general sexual assault can carry a penalty of up to ten years or 14 years jail time, depending on the severity of the crime, the age of the victim and whether the Crown proceeds summarily or by indictment. However, the most serious forms of sexual assault carry a jail sentence of life imprisonment. There are also mandatory minimum jail sentences imposed for certain sexual offences such as sexual crimes involving young persons.

Published Decisions

v. Sanghar and Sigar, 2012 ABPC 333

The two accused forcefully anally raped the victim in a jail cell at the Calgary Remand Centre. Mr. Sigar was convicted of Sexual assault with a weapon. Mr. Sanghar was the co-accused and was convicted of sexual assault simpliciter.  Mr. Sigar was sentenced to 6 ½ years in jail and Mr. Sanghar was sentenced to 5 ½ years in jail.

You can read the full decision here.

R v Hutchinson, 2014 SCC 19

The accused was charged with aggravated sexual assault after he intentionally poked holes in condoms to get his girlfriend, the complainant, pregnant. The complainant ended up getting pregnant which resulted in the complainant suffering medical consequences following an abortion. The Court held that consent was vitiated by fraud and the accused was found guilty.

You can read the full decision here.

R v Tremblay, 2018 ABQB 400

The accused was from Edmonton and was found guilty of sexual assault, aggravated assault and assault with a weapon. The accused was sentenced to 6 years in jail.

You can read the full decision here.

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