Understanding Sexual Assault

Sexual Assault is a serious offence defined by the violation of a person’s sexual integrity without their active, voluntary consent.

Criminal Code Provision (s. 271)

Sexual assault constitutes an offense, according to one of the definitions of that term in s.265, which occurs under circumstances of a sexual nature that **violate the victim’s sexual integrity**. Section 271 of the Criminal Code states that everyone who commits a sexual assault is guilty of:

1. An indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
2. An offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

Understanding Sexual Assault

Sexual Assault refers to any form of unwanted sexual interaction that occurs without the complainant’s voluntary consent. It ranges from unwanted touching of a sexual nature to more severe offences like non-consensual intercourse.

An assault is deemed “sexual” when the contact, by its nature or circumstances, breaches the sexual integrity of the victim. Courts take into account elements like:

• The section of the body touched.
• The nature of the contact.
• The context in which it occurred.
• If threats, coercion or a position of power were involved.

Consent in Sexual Assault Cases

Consent is a central element in cases of Sexual Assault.

• Must be voluntary: Consent must be provided willingly through actions or words.
• Cannot be implied by silence: The Supreme Court of Canada has determined that silence or lack of resistance does not imply consent.
• Cannot be given under specific conditions: Consent is invalid if acquired through coercion, intimidation, exploitation of trust/power, deception, or if the individual is unconscious or unable to provide consent.
• Withdrawal of consent: A person can withdraw consent at any moment, including while engaged in a sexual activity.

Under s.273(1).1, the Criminal Code states that consent is absent when:

• An individual indicates through their words or actions that they do not agree to participate in an activity
• A person expresses disagreement or takes action to indicate they do not want to proceed with an ongoing activity
• An individual cannot consent to the activity, for instance, if they are unconscious
• The consent arises from an individual exploiting a position of trust, power or authority
• Someone gives consent for another person

The obligation to obtain consent lies with the individual who is initiating or seeking the sexual activity. If a person has declined sexual contact, the other individual cannot assume that consent is present simply because time has elapsed or the person has not reiterated their refusal.

Leading Case about Consent in Sexual Assault Offence:

In the case of R. v. Ewanchuk, [1999] 1 S.C.R. 330, the accused lured a 17-year-old girl to his trailer by claiming it was for a job interview. Throughout the meeting, he consistently made sexual propositions, and each time, the complainant repeatedly said she did not wish to participate. She did not physically resist, but did indicate that she did not wish to participate. The accused stopped short of intercourse, but continued to push for sexual conduct. The Supreme Court ruled that there is a defence for implied consent for Sexual Assault offences, consent must be actively given. The court further emphasized the concept of “no means no,” and once the complainant says no, any further continuation is considered assault.

What does the Crown prove?

To secure a conviction, the prosecution is required to demonstrate beyond a reasonable doubt:

• The accused intentionally touched the complainant
• The contact was of a sexual nature
• The complaint did not give any consent
• The accused was aware, or was negligent and ignorant, of the absence of consent

Sentencing for Sexual Assault

Sexual assault is a hybrid offence.

1. Summary Conviction – Less serious cases may be prosecuted by way of a summary conviction. The highest punishment for a conviction is up to 18 months of imprisonment. A conviction will lead to mandatory registration on the Sex Offender Registry. Additionally, the court may impose further measures, including a DNA order, a ban on firearms, or probation.
2. Sentencing Factors Considered by Courts: In determining the appropriate sentence, courts evaluate various aggravating and mitigating factors. These include the nature of the assault, the kind of sexual interaction and degree of violence present, the age and susceptibility of the victim, and whether the perpetrator held a position of trust or authority (a teacher, coach, or employer). Judges also consider the effects on the victim, including physical damage and mental suffering, along with the perpetrator’s criminal history, especially regarding past sexual or violent crimes.
3. Indictable Offence – In more serious cases, an offence may be charged through an indictment. The highest penalty upon conviction can reach up to 10 years in prison. Sentences may be elevated when aggravating factors exist, such as the use of a weapon, inflicting bodily injury, or crimes against children.