Sexual assault is an assault, as defined in section 265 of the Criminal Code, which is sexual in nature and violates the bodily integrity of a victim. In simple terms, it is the non-consensual touching of another individual which is sexual in nature and/or violates a victims bodily integrity.
To qualify as a sexual assault, courts look at whether a reasonable person in the circumstances would recognize the sexual nature of the assault. In doing so, the courts may consider the following:
- The area of the body that touched by the accused
- The nature of the contact
- The circumstances in which the contact between the parties occurred
- Gestures or words accompanying the act
- Factors such as coercion, force and threats by the accused
- Intentions of the accused for making contact with the alleged victim
The sexual gratification of the accused is not an essential element of the offence, all that is require is an act that violates the integrity of the victim.
TYPES OF SEXUAL ASSAULT
Similar to general assault, there are different types of sexual assault in Canada.
All assault that is sexual in nature and that violates the sexual integrity of an alleged victim that does not classify as aggravated sexual assault (section 273), or sexual assault with a weapon, threats to a third party, or causes bodily harm (section 273) constitutes sexual assault under section 271 of the Criminal Code.
The burden of proof rests on the Crown prosecutor. For sexual assault offences, the Crown must prove beyond a reasonable doubt the following elements: (i) intentional touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. If the charge involves a weapon, the Crown must prove a weapon was used or threatened to be used in course of the offence and that the object was in fact a weapon. If the charge involves bodily harm, the Crown must show that the act caused harm or injury that is not transient or trifling in nature and interferes with the complainant’s health or comfort. For aggravated sexual assault, the Crown must prove that the act wounded, maimed, disfigured, or endangered the life of the complainant.
AGE OF CONSENT
Age of consent is the age at which a person can legally consent to sexual activity. In Canada, the age of consent for sexual activity is 16 years old. Age of consent laws apply to all forms of sexual activity, ranging from kissing to sexual intercourse. No one under the age of 16 can consent to sexual activity, and engaging in such behaviour is a criminal offence. There are exceptions to the age of consent, such as the “close in age” exception.
All “sexual activity” without consent is a criminal offence, regardless of age.
DEFENDING SEXUAL ASSAULT OFFENCES
Sexual assault charges are very serious and are prosecuted as such. These offences often times impact your career, relationships and future. You may find it difficult to move past the stigma associated with these charges, but an experienced lawyer can help you understand your options and guide you through the process. These offences are not undefendable, there are strategies and arguments that can be used to defend against sexual assault allegations.
A complainants sexual history is barred from being introduced as evidence at trial. However, documents such as counselling records, medical records and police records may be admissible as evidence at a trial. However, obtaining such records requires court permission that a a seasoned lawyer would be able to obtain. Further, there may have been a “mistaken belief of consent”, where the accused believed they had consent to engage in the behaviour. Such a belief can be brought forward as a defence.
Given the severity of sexual assault charges, it is important that you seek legal advice or representation from counsel at your earliest convenience. It is important to remember that you have a right to remain silent and a right to retain counsel. Contact Sack (Q.C.) and Bogle Law if you or someone you know is face sexual assault charges.
If the Crown proceeds by way of an indictment, the maximum term of imprisonment is 10 years. If the Crown proceed summarily, the maximum term of imprisonment is 18 months. It is up to the Crown to decide on how to proceed. Where the complainant is under the age of 16, there is a minimum jail term sentence of 6 months to 1 year depending on how the Crown proceeds.
Sexual assault with a weapon, threats to a third party, causing bodily harm and aggravated sexual assault are indictable offences. If a firearm is used in the commission of the assault, the accused will face 5-14 years in prison. Where the complainant is under the age of 16, the accused will face a minimum punishment of imprisonment for a term of 5 years.
SEX OFFENDERS REGISTRY
Canada maintains a National Sex Offender Registry that keeps track and monitors individuals who have been convicted of sexual offences. The information in the registry is only accessible by accredited Canadian police agencies through a provincial/territorial registration centre. Ontario operates its own sex offenders registry concurrently with the federal registry.
The Sex Offenders Registry was established as a result of the Sex Offender Information Registration Act (SOIRA). Registration is mandatory for certain sexual offences such as sexual assault, child pornography, child luring etc. For these offences a Judge will be required to order registration with the Sex Offenders Registry. The Crown prosecutor may also ask to have the convicted individual added to the registry.
Once an individual is added to the registry, they must report to the registry for the period specified in an order. They will remain on the Sex Offenders Registry for an indefinite period of time. Individuals placed on the Sex Offenders Registry must re-register annually or within 7 days following a change in address or name. They are also required to inform the police of any travel that exceeds 7 days.
A person ordered to report to the Sex Offenders Registry may apply for termination of the order. If they are ordered to report for a total of 10 years, they may apply for termination of the order after 5 years. If they are ordered to report for a total of 20 years, they may apply for termination of the order after 10 years. If they are ordered to report for life, they may apply for termination of the order after 20 years.
OTHER SEXUAL OFFENCES IN CANADA
It is important to note that there are other types of sexual offences in the Criminal Code. The following is a non-exhaustive list:
- Section 151 & 152 – Sexual Interference And Invitation To Sexual Touching
- Section 153 – Sexual Exploitation
- Section 155 – Incest
- Section 160 – Bestiality
- Section 162 – Voyeurism
- Section 163 – Child Pornography
- Section 173 – Indecent Acts
If you or someone you know has been charged with a sexual offence, contact Sack (Q.C.) and Bogle Law today for assistance.