Sexual Assault

Sexual assault is defined under the Criminal Code of Canada as any form of unwanted sexual contact or activity committed without consent. It does not depend solely on contact with any specific part of the human anatomy but rather the act of a sexual nature that violates the sexual integrity of the victim.

Types of Sexual Assault Charges

Canada's Criminal Code defines several categories of sexual assault offences, each with its own set of characteristics, potential penalties, and legal consequences. Below is a brief overview of the various types of sexual assault offences in Canada:

Sexual assault

Sexual assault is the most basic form of sexual assault and refers to any non-consensual sexual activity involving physical contact. This can include unwanted touching, kissing, or sexual intercourse. Sexual assault is punishable by a maximum of 10 years in prison.

Sexual assault with a weapon or causing bodily harm

This offence involves the use of a weapon or the causing of bodily harm during a sexual assault. The maximum penalty for sexual assault with a weapon or causing bodily harm is 14 years in prison.

Aggravated sexual assault

Aggravated sexual assault is the most severe type of sexual assault and involves causing significant injury to the victim during the assault. This can include acts that endanger the victim's life, cause permanent disfigurement, or lead to the loss of a bodily function. Aggravated sexual assault carries a maximum penalty of life imprisonment.

Sexual interference

Sexual interference involves sexual contact with a minor under the age of 16. Sexual interference carries a maximum penalty of 10 years in prison.

Invitation to sexual touching

Invitation to sexual touching involves inviting a minor under the age of 16 to engage in sexual activity. The maximum penalty for invitation to sexual touching is 10 years in prison.

Sexual exploitation

Sexual exploitation involves the use of a position of trust or authority to engage in sexual activity with a minor under the age of 18. This can include teachers, coaches, or other authority figures who engage in sexual activity with children or youth under their supervision. Sexual exploitation is punishable by a maximum of 10 years in prison.

Voyeurism

Voyeurism involves secretly observing or recording another person in a state of undress or engaged in sexual activity without their consent. Voyeurism is punishable by a maximum of five years in prison.

It's worth noting that these categories are not comprehensive and that the actual penalty for a specific case of sexual assault will depend on the specific circumstances of the offence and any aggravating or mitigating factors that may be present.

Understanding Consent in the Context of Sexual Assault Charges

Consent is defined under section 273.1 (1) of the Criminal Code as the voluntary agreement to engage in the sexual activity in question. A person cannot legally consent to sexual activity, subject to some exceptions, if they are underage, not of sound mind or impaired, or otherwise unable to fully understand or communicate their decision. Consult a sexual assault lawyer if you have been accused of sexual assault and want legal counsel to provide further clarification on consent.

Consent Guidelines Applied to Every Sexual Assault Charge

First and foremost, consent may be revoked at any time and it cannot be assumed or implied. The absence of a “no” does not mean a “yes”. Consent must be given at the time of the sexual activity and during the entire duration of the sexual activity. In other words, consenting to one sexual activity does not mean the other party has consented to all sexual activities.

Factors which may render Consent invalid in Sexual Assault Cases

Assault related offences, whether sexual or not, require a lack of consent by a party to become a criminal matter. Consent has its limitations which can render consent as invalid: 

• Consent may not be obtained when there is intimidation or a threat of violence to a complainant.
• Consent is not given if there is fraud (dishonesty on some key element) surrounding the circumstances that lead to consent.
• Consent is not given if there is a power imbalance between parties which results in the use of one’s authority over another in order to obtain consent.
• The law also states that once serious bodily harm has been caused by an individual upon another, any previously established consent is nullified. 

Age of Consent

The legal age of consent in Canada is 16 years old. Exceptions: Persons under 16 years can have consensual sex with someone close in age.

• 12-13 year olds (two-year age difference)
• 14-15 year olds (five-year age difference)

Individuals under 18 years old cannot consent to sex where the older consenting party is in a position of trust, authority, dependency, or there is an element of exploitation (pornography, prostitution, etc.). Even when the consenting parties are close in age.

How to Proceed When Accused of Sexual Assault

Mistakes to Avoid When Facing a Sexual Assault Charge

• Speaking to the police before you consult a lawyer: It is always a mistake to speak to the police without legal representation because what you say can be misconstrued and used against you.This means declining any samples for DNA or volunteering any information prior to speaking with your experienced sexual assault lawyer who will give you legal counsel
• Speaking to the complainant: Cut off all direct and indirect communication with the alleged victim, even if you believe the situation is a misunderstanding. Any communication with the victim can be used against you in court and may be perceived as harassment or intimidation.

Sexual Assault Charge: Next Steps 

First and foremost - understand the peril you face. A sexual assault charge can lead to severe consequences. It’s essential that you maintain your composure and manage your case with the help of a criminal defence lawyer. Working with an experienced sexual assault lawyer can help you navigate this complex situation.

Create a Timeline of the Event(s)

Retaining notes, making a timeline of events and making copies of other documents or records that could be pertinent to your case may be a great help to your lawyer in mounting a defence. Speak to your lawyer before destroying anything which may be considered evidence. Take screenshots of text messages, emails and social media content which may be relevant.

Make a List of Witnesses 

A witness is anyone who might be able to provide evidence or information about the alleged victim and the alleged sexual assault. Ensure that you retain the names, contact information, description, employment, and other information about witnesses that may be relevant to your case.

Retaining Evidence Relevant to Your Sexual Assault Case

Compile all relevant records such as text messages, voice recordings, emails, social media communications, computer records, and GPS records. These records may help demonstrate the nature of your relationship with the alleged victim, provide evidence concerning consent, or offer an alibi if you were not with the victim at the time of the alleged sexual assault.

Furthermore, you should collect any physical evidence that might support your case and preserve it in a safe and secure manner. Physical evidence might include clothing, photographs, or surveillance footage from the location of the alleged incident.

Get Legal Counsel From an Experienced Sexual Assault Lawyer

The most important step you can take when facing a sexual assault charge is to consult an experienced sexual assault lawyer. An experienced sexual assault lawyer will help you navigate the legal process, protect your rights, and build a strong defence.

Sexual Assault Charge: Penalties and Consequences

The potential penalties for sexual assault in Canada are severe, and they vary depending on the nature of the offence. Sexual assault is defined in the Criminal Code of Canada, which outlines several categories of offences, each with its own set of penalties. Below are some of the potential penalties for sexual assault:

• Sexual assault: Up to 10 years in prison
• Sexual assault with a weapon or causing bodily harm: Up to 14 years in prison
• Aggravated sexual assault: Life imprisonment

It is important to note that these are maximum penalties, and the actual sentence handed down will depend on the specific circumstances of the offence, as well as any mitigating or aggravating factors. When determining the appropriate sentence, the judge will consider a range of factors such as the severity of the assault, the age of the victim, and the perpetrator's criminal record.

Consequences for Perpetrators of Sexual Assault

In addition to the criminal penalties, a conviction for sexual assault can result in other legal and personal consequences. These consequences can be severe and far-reaching, and can include:

• Criminal record: A sexual assault conviction will result in a criminal record, which can limit an individual's employment prospects and travel opportunities.
• Registration as a sex offender: Depending on the nature of the offence, the convicted individual may be required to register as a sex offender, which can significantly impact their ability to find housing, employment, and social support.
• Court-ordered supervision: The convicted individual may be subject to court-ordered supervision, which can include conditions such as staying away from the victim or attending counselling.
• Personal consequences: Sexual assault can have a profound impact on the victim's life, and the perpetrator may face personal consequences such as social isolation, loss of relationships, and mental health issues.

Sexual Assault Sentencing

If you or a loved one has been accused of a sex crime in Canada, it’s crucial to be informed and take the appropriate actions to protect your rights and interests.

What are the key factors that determine the severity of a sexual assault sentence?

In sexual assault cases, the sentence a defendant receives can be influenced by several factors, both mitigating and aggravating. Mitigating factors, such as the defendant's age, criminal history, and willingness to plead guilty, can result in a reduced sentence. 

However, aggravating factors, such as the severity of the assault, use of violence, and exploitation of a vulnerable victim, can lead to harsher sentences. In most cases, aggravating factors carry more weight and can result in severe penalties for the defendant.

Mitigating Factors:

• First-time offenders could receive a reduced sentence.
• Entering a guilty plea early may lead to a reduction in sentence.
• If the accused is a minor, this may mitigate their sentence.

Aggravating Factors:

• The younger the victim, the more severe the sentence is likely to be.
• Violence resulting in the victim sustaining injuries will aggravate the sentence.
• The vulnerability of the victim determines the severity of the punishment, and if the victim was forced to perform sexual acts, the defendant will receive a harsher sentence.
• The presence of a weapon will aggravate the defendant's sentence.
• If the accused was aware that the victim was a minor, their sentence may be extended.
• Penetration will increase the severity of the case and negatively affect the accused.
• Recurring offenders, particularly those with previous sexual offences, will face aggravated sentences.

Minimum Sentencing Guidelines for Sexual Assault Charges

Under the Criminal Code of Canada, the minimum mandatory sentence for sexual assault is dependent on the victim's age and whether the Crown proceeds by indictment or summary. If the victim is younger than 16 years and the Crown chooses to proceed with an indictment, the minimum mandatory sentence is one year in jail. However, if the Crown goes ahead summarily, the minimum sentence is six months in jail. 

If the victim is over 16 years, there is no fixed minimum sentence, but a range of sentences typically dictates that the accused must serve jail time.

The Impact of Severe Sentencing for Sexual Assault in Canada

In cases where the accused causes bodily harm during a sexual assault, the maximum penalty is 14 years in prison, unless a firearm is involved. If a prohibited or restricted gun is used, the mandatory minimum sentence is five years. If another firearm is involved, the starting point for the sentence is four years. If the victim is younger than 16 years, the minimum sentence is five years. 

If the victim suffers severe injuries, the offender could face aggravated assault charges, which carry the same minimum sentencing guidelines as sexual assault charges. The maximum penalty for such crimes is life in jail.

Sexual Assault Defence: Mistaken Belief in Consent

The Canadian legal system recognizes that individuals may hold genuine but mistaken beliefs regarding consent in cases of sexual activity. This recognition is encompassed within the defence known as "mistaken belief in consent". Get a free consultation with a sexual assault lawyer to determine if this defence might be available for your sexual assault charge.

Click here to learn more about the mistaken belief in consent defence. 

Role of a Sexual Assault Lawyer

The most important step you can take when facing a sexual assault charge is to consult an experienced sexual assault lawyer. An experienced sexual assault lawyer will help you navigate the legal process, protect your rights, and build a strong defence.

Consulting a sexual assault lawyer has numerous benefits:

• In-depth knowledge of sexual assault laws and legal procedure
• Proficiency in managing evidence
• Navigating potential penalties and unfavourable outcomes
• Effective negotiation skills
• Familiarity with local courts and legal experts

Don’t Face Your Sexual Assault Charge Alone

An experienced defence lawyer is essential when facing a sexual assault charge. They can help you navigate the complexities of the legal system, protect your rights, and develop a strong defence strategy tailored to your specific case.

Need a Lawyer? Get a Free Consultation With a Skilled Criminal Lawyer

Don't hesitate to reach out to us about your sexual assault charge. Call (306) 517-6636 and a skilled criminal defence lawyer will discuss your case with you and explore your options.