What is Considered Sexual Assault in Alberta?

In Canada, sexual assault is any assault of a sexual nature that violates the sexual integrity of the victim. 

Another way to describe this is any non-consensual sexual behaviour, bearing in mind that nobody under the age of 16 in Canada can legally provide consent for sexual activity with another person more than five years older than them.

Surprisingly for many people, no physical contact with a specific part of the body is necessary to be convicted of a sexual assault, although it does play a key part in many sexual assault cases.

Victims can be men or women and may be of the same sex. A spouse can even be charged with sexual assault on his/her husband or wife in Canada.

What are the main considerations in sexual assault cases in Canada?

When law enforcement investigates an alleged sexual assault offence in Canada, they will consider each of the following factors:

• The part of the body touched 
• The nature of the contact 
• The situation in which the contact occurred 
• The words and gestures accompanying the act 
• Any threats that may or may not be accompanied by force 
• All other circumstances surrounding the act 

Depending on the outcome of their investigation into these factors, a charge of sexual assault may be filed against an individual. The precise type of offence charged depends on the findings of the investigation.

Types of sexual assault offences

The main types of sexual assault offences in Canada are the following:

Sexual touching or groping

This is the nonconsensual touching of an individual’s intimate areas, including everything from touching with hands, objects, or coerced touching.

The unwanted touching may occur in any location, including in public or private places and anyone can be charged, irrespective of age, gender, sexual orientation or relationship status.

Sexual interference

This is sexual contact (touching, kissing or sexual penetration, for instance) with an individual under 16 years of age or someone vulnerable to sexual coercion, such as a patient or a client. 

Sexual interference often occurs in institutions such as educational, religious or sports organizations and is treated harshly by the Canadian criminal justice system. 

Sexual exploitation

This criminal offence refers to any sexual activity that exploits someone’s vulnerability or powerlessness. Examples include exploiting other individuals through prostitution, pornography or sexual harassment.

Sexual assault with a weapon

If the alleged offender uses a weapon to threaten or intimidate the victim during a sexual assault, the possible punishments are much more severe, with minimum sentences also applied. This offence may be commissioned with any type of weapon, including a knife or firearm. 

Aggravated sexual assault

Aggravated sexual assault occurs where the assault results in serious bodily harm to the victim or more than one individual is involved. The bodily harm can be a wound, disfigurement or any action that maims or endangers the life of the complainant.

If threats are made to cause bodily harm to a person other than the complainant, this is also regarded as an aggravated sexual assault in Canada.

What are the penalties for sexual assault in Canada?

The penalties for sexual assault are severe in Canada. The precise punishment depends on how the court handles the offence:

• For an indictable offence, the offender is liable to imprisonment for up to 10 years, or if the Complainant is under 16, imprisonment of up to 14 years. 
• For an offence punishable on summary conviction, the offender is liable to imprisonment for a term not exceeding eighteen months and a fine of up to $5,000.

Most sexual assaults are “hybrid” offences that can be prosecuted as an indictable or summary offence, depending on the severity of the assault, the age of the victim, and the criminal history of the offender.

For sexual assaults where a firearm is used in the commission of the offence, the term of imprisonment can be up to fourteen years with a minimum sentence of four years.

For aggravated sexual assaults where a firearm is used in the commission of the offence, the maximum term can be up to life imprisonment and the minimum sentence is four years.

Common defences for sexual assault

Sexual assault in Canada takes many forms and is associated with a wide range of penalties. Because of the harsh nature of the consequences of a conviction, it’s essential to compile the best defence possible against charges.

Most defences in sexual assault cases are built around the following:

• Honest but mistaken belief in consent (except if the victim is below the age of consent)
• Mistake in identity
• Maintaining that there was no sexual contact
• That there was consent; and/or
• Any applicable Charter defence (where the accused’s Charter rights were breached)

Consent as a defence

Consent is not a valid defence against sexual interference and some other sexual assault offences because no minor aged 16 or under can provide consent to anyone more than five years older than them. Similarly, a person under the age of 14 cannot consent to sexual activity with another person who is two or more years older than them.

It should also be noted that no person in authority can use consent as a defence for sexual activity with a person under the age of 16.

Call us to arrange a confidential consultation

To speak with Cory Wilson or arrange a free, no-obligation consultation with Wilson Criminal Defence, call 403-978-6052 or email us here.