Cory Wilson is a criminal defence lawyer serving Calgary, Okotoks, Airdrie, Strathmore, Cochrane, Canmore, Didsbury, Medicine Hat, Lethbridge, Grand Prairie and  Turner Valley.

Sexual assault is a serious crime that can have long-lasting impacts on the victim. It is a violation of an individual’s bodily autonomy and can have severe physical and psychological consequences. In Canada, sexual assault is a criminal offence that is taken seriously by law enforcement and the justice system. This blog will explore sexual assault laws in Canada, including how the law defines sexual assault, the types of sexual assault, consent, and the legal process for prosecuting sexual assault cases.

What is Sexual Assault?

In Canada, sexual assault is defined as any non-consensual sexual act that is committed against another person. This includes a wide range of sexual activities, such as touching, kissing, and penetration, that are done without the other person’s consent. It is important to note that sexual assault can happen to anyone, regardless of gender, age, or sexual orientation. Learn more.

Types of Sexual Assault

There are several types of sexual assault that are recognized under Canadian law. These include:

1. Sexual assault: This is any sexual activity that is done without the other person’s consent. This can include touching, kissing, and penetration.
2. Sexual interference: This is sexual touching that is done to a person who is under the age of 16, or who is unable to give their consent due to a mental or physical disability.
3. Sexual exploitation: This is when a person in a position of trust or authority, such as a teacher or coach, engages in sexual activity with a person under the age of 18.
4. Invitation to sexual touching: This is when a person invites another person to engage in sexual activity, without that person’s consent.
5. Sexual assault with a weapon or threats: This is when a person uses a weapon or threatens to use a weapon to commit a sexual assault.
6. Aggravated sexual assault: This is when a person causes serious bodily harm during a sexual assault.

Consent

Consent is a critical component of sexual activity in Canada. For sexual activity to be consensual, both parties must freely and actively agree to the activity. This means that a person must be sober and not under duress or coercion when giving their consent. Additionally, a person must be of the legal age of consent, which is 16 years old in Canada. If a person is under the legal age of consent, they are not able to give their consent to sexual activity. Learn more.

It is important to note that a lack of resistance does not imply consent. Just because a person does not physically resist a sexual advance, does not mean that they are consenting to the activity. Additionally, a person’s silence does not imply consent. If a person is unable to give their consent, or if they do not provide explicit consent to the activity, then it is considered sexual assault.

Legal Process for Prosecuting Sexual Assault Cases

If a person is the victim of sexual assault, there are several steps they can take to seek justice through the legal system. The first step is to report the assault to the police. The police will then investigate the case and gather evidence. This evidence can include physical evidence, such as DNA samples, as well as witness testimony.

If the police determine that there is enough evidence to proceed with charges, the accused will be arrested and charged with sexual assault. The accused will then appear in court, where they will be given the opportunity to plead guilty or not guilty. If the accused pleads guilty, they will be sentenced by the judge. If they plead not guilty, the case will go to trial.

At trial, the prosecution will present evidence to prove that the accused committed sexual assault. The accused will have the opportunity to defend themselves and present their own evidence. The judge or jury will then decide whether the accused is guilty or not guilty. If the accused is found guilty, they will be sentenced by the judge. The sentence for sexual assault can vary depending on the severity of the crime and the circumstances surrounding the assault. In Canada, the maximum sentence for sexual assault is life imprisonment.

In addition to the criminal justice system, victims of sexual assault can also seek civil remedies, such as a restraining order or a civil lawsuit for damages. These remedies can provide additional support and protection to the victim.

Challenges in Prosecuting Sexual Assault Cases

Despite the seriousness of sexual assault and the legal protections in place, there are still many challenges in prosecuting sexual assault cases in Canada. Some of these challenges include:

1. Under-reporting: Many victims of sexual assault do not report the crime to the police. This can be due to fear of retaliation, stigma, or lack of trust in the justice system.
2. Lack of evidence: Sexual assault cases often rely on witness testimony and physical evidence. However, in many cases, there is limited or no physical evidence, and witnesses may be reluctant to come forward.
3. Bias and stereotypes: Victims of sexual assault may face bias and stereotypes in the justice system. This can include victim-blaming, disbelief, or minimizing the severity of the assault.
4. Trauma: Sexual assault can have long-lasting physical and psychological impacts on the victim. This trauma can make it difficult for victims to participate in the legal process or to provide clear and consistent testimony.

Efforts to Improve Sexual Assault Laws and Procedures

Despite the challenges in prosecuting sexual assault cases, there have been significant efforts in Canada to improve sexual assault laws and procedures. Some of these efforts include:

• Increased awareness and education: There has been a greater focus on educating the public about sexual assault and consent. This includes awareness campaigns, school programs, and training for law enforcement and legal professionals.
• Changes to the legal system: There have been several changes to the legal system to improve the handling of sexual assault cases. This includes the use of trauma-informed approaches, specialized courts for sexual assault cases, and greater protections for victims.
• Support for victims: There are many support services available to victims of sexual assault, including counseling, legal assistance, and crisis hotlines. These services can help victims navigate the legal process and recover from the trauma of the assault.

One of the significant challenges in prosecuting sexual assault cases is under-reporting. Many victims of sexual assault do not report the crime to the police, which makes it challenging to hold perpetrators accountable. There are many reasons why victims may choose not to report the crime, including fear of retaliation, stigma, and lack of trust in the justice system. For example, some victims may fear retaliation from the perpetrator or may worry about being blamed for the assault. Additionally, some victims may believe that the justice system will not take their case seriously or will not believe their story.

Under-reporting of sexual assault is a significant issue in Canada. According to Statistics Canada, only 5% of sexual assaults in Canada are reported to the police. This means that the vast majority of sexual assaults are not reported, and perpetrators are not held accountable. This is a significant problem, as perpetrators of sexual assault may continue to offend, putting other people at risk.

Another challenge in prosecuting sexual assault cases is the lack of evidence. Sexual assault cases often rely on witness testimony and physical evidence. However, in many cases, there is limited or no physical evidence, and witnesses may be reluctant to come forward. This can make it difficult to prove that a sexual assault occurred, and it can make it challenging to hold perpetrators accountable. Additionally, victims of sexual assault may have difficulty remembering details of the assault, which can make it challenging to provide consistent testimony.

Bias and stereotypes are also a significant challenge in prosecuting sexual assault cases. Victims of sexual assault may face bias and stereotypes in the justice system. This can include victim-blaming, disbelief, or minimizing the severity of the assault. For example, some people may believe that victims of sexual assault are to blame for the assault because of the way they dressed or because they were drinking. Additionally, some people may believe that victims of sexual assault are exaggerating the severity of the assault or are lying to get attention.

Trauma is another significant challenge in prosecuting sexual assault cases. Sexual assault can have long-lasting physical and psychological impacts on the victim. Victims of sexual assault may experience symptoms such as anxiety, depression, post-traumatic stress disorder, and substance abuse. This trauma can make it difficult for victims to participate in the legal process or to provide clear and consistent testimony. Additionally, victims of sexual assault may feel as though their autonomy has been taken away, which can make it challenging for them to trust others or to engage in other social interactions.

Efforts to improve sexual assault laws and procedures in Canada are ongoing. One of the significant areas of focus is increasing awareness and education about sexual assault and consent. This includes awareness campaigns, school programs, and training for law enforcement and legal professionals. For example, there are many organizations in Canada that work to raise awareness about sexual assault, such as the Canadian Women’s Foundation and the Sexual Assault Centre of Edmonton. Additionally, many universities and colleges in Canada have implemented programs to raise awareness about sexual assault and consent, such as the It’s Time to Act campaign at the University of Alberta.

Another area of focus is improving the legal system’s response to sexual assault cases. This includes changes to laws and procedures that make it easier for victims to report sexual assault and receive justice. For example, the Canadian government recently passed Bill C-3, which amends the Criminal Code to eliminate the use of the “rape shield” provision in sexual assault trials. This provision prohibited the use of evidence related to the victim’s sexual history unless it was deemed relevant to the case. The elimination of this provision is expected to improve the fairness of sexual assault trials and reduce the stigma and discrimination faced by victims.

Additionally, efforts are ongoing to improve the collection and use of physical evidence in sexual assault cases. This includes the use of specialized forensic evidence collection kits and the implementation of training programs for law enforcement and medical professionals. The Canadian government has also established the Sexual Assault Review Team to review and provide recommendations on sexual assault cases that have been closed without charges or convictions. This team aims to identify areas for improvement in the justice system’s response to sexual assault cases.

Despite these efforts, there is still much work to be done to address sexual assault in Canada. This includes addressing the root causes of sexual violence, such as gender inequality and harmful social norms. Additionally, it is essential to provide support and resources for victims of sexual assault, including counseling, medical care, and legal assistance.

Defences in Sexual Assault Cases

In sexual assault cases, the accused person may raise various defences to argue that they are not guilty of the offence. Some of the common defences in sexual assault cases in Canada include:

1. Consent: The accused may argue that the sexual activity was consensual and that they had a reasonable belief that the victim had given their consent. However, it is important to note that a victim’s silence or lack of resistance does not constitute consent, and the accused has the burden of proving that they obtained valid consent.
2. Mistaken belief in consent: The accused may argue that they had a mistaken belief that the victim had given their consent, and that this belief was reasonable in the circumstances. For example, the accused may argue that the victim appeared to be willing, or that they had previously engaged in sexual activity with the victim.
3. Honest belief in the victim’s age: In cases where the victim is under the age of consent (which is generally 16 years in Canada), the accused may argue that they had an honest belief that the victim was of legal age.
4. Alibi: The accused may argue that they were not present at the time of the alleged sexual assault, and that they have an alibi to support this claim.
5. Attack on the victim’s credibility: The accused may try to attack the victim’s credibility by arguing that they are lying, have a motive to falsely accuse the accused, or have a history of making false accusations.

Contact a Sexual Assault Lawyer Today

Sexual assault is an offence that carries significant sentences, almost always being lengthy jail terms. It is important that you begin your defence as soon as possible to ensure you are protected through the process.

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Cory Wilson is a criminal defence lawyer based in Calgary and serving all of Alberta. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no obligation consultation.