FAQs
What Qualifies as Sexual Assault in Canada?
Sexual assault cases can be highly complex and involve individuals of all ages, frequently only being reported well after they occurred.
In fact, according to the Government of Alberta, 95 percent of survivors do not report assaults to police at all, making sexual violence the most under-reported crime in Canada.
Let’s examine what constitutes sexual assault, the penalties for a conviction, and what you can expect if you are the subject of an investigation into a sexual assault.
What is sexual assault?
Sexual assault refers to any assault committed where the sexual integrity of the victim is violated. It includes any unwanted sexual grabbing, kissing, and fondling as well as other actions such as sexual penetration.
To properly understand sexual assault, we first need to understand what constitutes “assault” in Canada. Assault is defined in the Criminal Code in the following way:
A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
Although sexual assault is not defined in the Criminal Code, the code details three levels of sexual assault offences:
- Section 271: Sexual Assault
- Section 272: Sexual Assault with a Weapon
- Section 273: Aggravated Sexual Assault
Non-consensual touching or force is the most common form of sexual assault. This can range from unwanted petting or kissing to touching of private parts and rape. In Canada, it should be noted that spouses may be charged with sexual assault upon their spouses.
It should also be remembered that sexual threats by words or gestures can also be considered sexual assault—though this can be much more challenging to prove.
Section 272 offenses most commonly occur when an individual is accused of:
- Carrying, using or threatening to use a weapon or an imitation of a weapon
- Threatening to cause bodily harm to a person other than the complainant
- Causing bodily harm to the complainant, or
- Participating in an offence with any other person
Section 273 offences (aggravated sexual assault) occur when an accused individual wounds, maims, disfigures or endangers the life of the complainant during the commission of a sexual assault.
Sexual assault prosecutions and convictions in Canada
An estimated 94 percent of sexual violence offenders are men and 87 percent of survivors are women, although sexual violence can impact anyone.
In Alberta alone, an estimated 1.8 million people have experienced sexual violence in their lifetime—around 45 percent of the population.
These cases can be challenging to prove for victims. For instance, the Crown Prosecutor in a sexual assault case involving touching beyond a reasonable doubt must prove the following elements:
- The touching occurred
- The touching was of a sexual nature
- The complainant did not consent to the touching
Often, there are no witnesses to the alleged offence other than the victim, increasing the difficulties. The issue of consent is generally central to these cases. The mistaken belief in consent may or may not be available as a defence to the accused, depending on the circumstances of the case.
While the number of sexual assault cases is greatly under-reported, wrongful accusations also occur—and these can be just as challenging to disprove. Sometimes, those wrongly accused suffer immensely from unwarranted social and reputational damage. It’s important to hire an experienced sexual assault lawyer to prepare a defence if you are in this situation.
The potential penalties for a sexual assault conviction are as follows:
Everyone who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
Anyone found guilty of sexual assault with a weapon faces an indictable offence with a punishment of up to 14 years in prison. Aggravated sexual assault is also an indictable offence with a punishment of up to life imprisonment.
What is the age of consent in Canada?
The age of consent in Canada is generally 16. However, in some sexual assault cases involving younger individuals, there are variations to this.
For instance, a person is 12 or 13 can legally consent to sexual activity with someone who is less than two years older than them as long as that person:
- Is not in a position of trust or authority towards them
- Is not in a relationship of dependency
A person of 14 or 15 years can legally consent to sexual contact with someone who is less than five years older than them, providing that person meets the same criteria outlined above.
Factors considered during sexual assault investigations
When investigating a sexual assault, the following factors will be taken into account:
- The age of the alleged victim
- The body part(s) touched
- The nature of the contact
- All circumstances in which the contact occurred
- The words and gestures accompanying the act
- Any threats that may or may not have been accompanied by force
- Whether the alleged perpetrator was in a position of trust or authority
- Whether any relationship of dependency existed between the defendant and the victim
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.