Sexual Assault

There are different types of sexual assault that depend on the circumstances.

Sexual Assault occurs if there has been any sexual contact without consent.

Sexual Assault with a weapon, threats to a third party or causing bodily harm occurs if the person does any of the following in committing the offence:

• carries, uses or threatens to use a weapon or an imitation weapon
• threatens to harm someone else, such as a child or friend, if the person did not consent
• injures the victim during the assault
• chokes, suffocates or strangles the victim during the assault
• commits the offence along with anyone else

Aggravated Sexual Assault happens if the victim was wounded, maimed or disfigured during the assault or if their life was endangered.

Under Canadian law, consent must be affirmative and ongoing.

Affirmative consent means that a person communicates their consent freely through words or actions. The Supreme Court of Canada has ruled that there is no such thing as implied consent. For example, consent cannot be implied simply because the person:

• does not object to or resist sexual advances
• is silent or otherwise passive

Ongoing consent means that their must be consent for the whole duration of the activity. This also means that consent can be withdrawn at any time through words or actions. For example, a person may agree to sexual activity and then choose to stop during the activity. In this case, they are no longer giving ongoing consent.

A person cannot give consent if they are unconscious or otherwise incapable. This is the case even if they gave consent in advance. For example, a person may give consent initially and then become unconscious. In this case, they are no longer able to give consent.

An accused’s belief that the person consented is not a defence if the belief was based on willful blindness. Wilful blindness means purposely not getting clear consent in a questionable situation. It is also not a defence if the accused did not take reasonable steps to find out if the victim was consenting.

Alcohol and drugs are frequently associated with sexual assault. It is important to note that individuals who are impaired by alcohol or drugs cannot legally consent to sexual activity. The Criminal Code states that it is not a defence if an accused person believed that the victim consented to the activity where the belief was the result of self-induced intoxication.

The age of consent is discussed above. A person below this age cannot legally consent to any sexual activity, regardless of what they say or do. It is not a defence for a person charged with sexual assault to simply say that they believed the other person was old enough to consent. They must have taken reasonable steps to find out how old the other person really was.

There is a wide range of sentences that are possible when someone is convicted of sexual assault. Sexual assault that does not involve things like a weapon or bodily harm can be prosecuted either as a summary conviction or an indictable offence. The maximum sentence in this case is:

• 1.5 years if it is prosecuted as a summary conviction offence or 2 years if the victim is under 16
• 10 years if it is prosecuted as an indictable offence or 14 years if the victim is under 16

If the victim in these cases is under 16, there is also a minimum sentence of:

• 90 days in jail if the offence is prosecuted as a summary conviction offence
• 1 year in jail if the offence is prosecuted as an indictable offence

Sexual assault with a weapon, threats to a third party or causing bodily harm can only be prosecuted as an indictable offence. Someone convicted of this offence can be sentenced to a maximum of 14 years.

Aggravated sexual assault can also only be prosecuted as an indictable offence. Someone convicted of this offence can be sentenced to life in prison.

For the two sexual assault offences mentioned above, there are also minimum sentences. A person convicted of either can be sentenced:

• if a restricted or prohibited firearm was used, to a minimum of 5 years for a first offence and 7 years for any further offences
• if any firearm was used and organized crime was involved, to a minimum of 5 years for a first offence and 7 years for any further offences
• in any other case where a firearm was used, to a minimum of 4 years
• if the victim was under 16, to a minimum of 5 years

It is important to remember that the maximum sentences are usually reserved for the worst offender who has committed the worst type of the offence.