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Sexual Assault

When it comes to any kind of sexual contact – from touching to kissing to intercourse – everyone has the right to say “No” to anyone, at any time. No one has the right to engage in sexual activity with another person without their consent – ever. It is a criminal offence to have non-consensual sexual contact with another person. It is also a criminal offence to threaten to have sexual contact with someone without their consent.

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 more than one person assaulted the victim during the incident or the person committing the assault did one of the following things...

  • had a weapon, or an imitation weapon and threatened to use it
  • threatened to harm someone else (a child or friend) if the person did not consent
  • injured the victim during the assault

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 and/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 doesn’t object to or resist sexual advances, is silent or otherwise passive. Because consent must also be ongoing, consent can be withdrawn at any time through words or actions – even if a person initially agreed to the sexual activity.

Age of Consent

In Canada, the age of consent to most sexual activity is 16, with two “close in age” exceptions.

Practically speaking this means that...

  • youths aged 12 or 13 may consent to sexual activity with someone who is no more than 2 years older than them
  • youths aged 14 or 15 may consent to sexual activity with someone who is no more than 5 years older than them

This same-age exceptions only apply if:

  • the other person is not in a position of trust or authority to the young person
  • the other person is not someone the young person is dependent on
  • the sexual activity is not exploitive

When an exception does not apply, individuals under the age of 16 cannot legally consent to any sexual activity - sexual contact with them would be a sexual assault.

What is Not a Defence

Belief that the Person Consented

An accused’s belief that the person consented is not a defence if the belief was based on willful blindness (deliberately avoiding getting clear consent in a questionable situation) or the result of the accused not taking 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. It is also important to note that the Criminal Code states that it is not a defence that an accused person believed that the victim consented to the activity where the accused person’s belief was the result of self-induced intoxication.

Mistake of Age

Sexual activity without consent is sexual assault and young people who are not at the age of consent cannot consent to sexual activity. A person below this age cannot legally consent to any sexual activity, regardless of what they say or do. If an individual is charged with sexual assault in these circumstances, they can’t simply say that they believed the other person was old enough to consent. They must have made reasonable steps to find out how old the other person really was.

Sentences for Sexual Assault

There is a wide range of sentences that are possible when someone is convicted of sexual assault. The maximum sentence for sexual assault that does not involve things like a weapon or bodily harm is 18 months, if it is prosecuted as a summary conviction offence, and 10 years, if it is prosecuted as an indictable offence.

However, if the victim of the sexual assault is under 16 there is a minimum sentence of 90 days in jail if the offence is prosecuted as a summary conviction offence and one year in jail if the offence is prosecuted as an indictable offence.

If a person is convicted of sexual assault with a weapon, threats to a third party or causing bodily harm they can be sentenced to up to 14 years in prison. If a person is convicted of aggravated sexual assault they can be sentenced to life in prison. If a firearm was used in the assault or if organized crime was involved there are minimum sentences ranging from 4 to 7 years in prison. 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.

Victims of sexual assault can find more information here.

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PLEA gratefully acknowledges our primary core funder the Law Foundation of Saskatchewan for their continuing and generous support of our organization.