Can You Get Probation for Sexual Assault in Canada?

Punishments for sexual assault vary in their severity in Canada but few offenders are treated with any leniency. Sentences can involve lengthy terms of imprisonment for the most serious offences to a few days in jail for minor offences. Probation may be possible in some instances.

Cases involving any type of assault must be assessed individually on the available facts and evidence. With sexual assault, the frequent absence of conclusive physical evidence can make matters even more complex.

So, how are these types of cases approached in Canada, what are the possible punishments, and when is probation most likely to be granted?

What are the main sexual assault offences in Canada?

In the Canadian Criminal Code, sexual assault refers to “any unwanted sexual act done by one person to another or any sexual activity done without a person’s consent or without their voluntary agreement”.

Three levels of sexual assault offences are addressed in the Code:

1. Section 271: Sexual Assault 
2. Section 272: Sexual Assault with a Weapon
3. Section 273: Aggravated Sexual Assault

To understand sexual assault, we must also understand the crime of assault, which 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.

Most sexual assault offences in Canada involve non-consensual touching or force, ranging from unwanted petting or kissing to the touching of private parts and rape. 

No physical injury is necessary for sexual assault charges to be filed by law enforcement. Sexual threats by words or gestures can also be considered sexual assault—though these cases may be more challenging to prove.

Standard punishments for sexual assault in Canada

If an individual is convicted of sexual assault in Canada, the sentencing is often delayed for several weeks while a pre-sentence report (“PSR”) is prepared by a probation officer.

The sentences imposed for sexual assault in Canada are as follows:

For a summary conviction

• Up to 18 months in jail
• A maximum fine of $5,000

For a summary conviction (complainant under 16)

• Minimal jail term of 6 months
• Up to 24 months less a day in jail
• A maximum fine of $5,000

For an indictment

• Up to 10 years in jail

For an indictment (complainant under 16)

• Minimal jail term of one year
• Up to 14 years in jail

Section 272 and 273 offences (sexual assault with a weapon and aggravated sexual assault) are treated most severely in Canada. Repeat offenders may face life imprisonment.

When is probation for sexual assault more likely?

Probation is one of the lightest sentences available for a sexual assault conviction and is seldom very likely. For all but the most minor transgressions, defendants usually face a jail term for sexual assault. However, probation is more likely to be granted by a judge in the following circumstances:

• A first criminal offence
• No previous history of violence or sexual assault
• Nobody was physically injured
• No weapon was used
• The victim was an adult, not a child
• The victim’s normal daily activities and ability to work were not disrupted
• The defendant only just reached adulthood

Though it can be challenging to plead mitigating circumstances in a sexual assault case, representation from a seasoned sexual assault defence lawyer increases the likelihood of probation.

Criminal defence lawyers familiar with the local judicial system may be able to negotiate with the prosecution for downgraded charges in exchange for avoiding a long, expensive trial that is not in the public interest. However, it is often very difficult to argue that releasing a sex offender is in the public interest.

If the case proceeds to a trial and conviction, the judge will decide on the severity of the punishment and whether probation is a possibility.

Can a defendant get jail AND probation for sexual assault?

It is quite common in Canada for sexual assault convictions to result in a jail sentence of less than two years AND probation of 1-3 years after the jail term has been completed.

Several other sentencing options are available to judges in Canada…

Alternative sentencing options

Judges can grant conditional discharge for minor sexual offences in Canada. The offender receives a partial sentence, which includes probation, in exchange for an admission of guilt.  The offender is free after the probationary period providing the conditions are met. Although the discharge remains on the offender’s record, it can be purged after a few years.

If the conditions of probation are not met, the offender will be convicted of the crime for which they were originally charged.

An absolute discharge in a sexual assault case leaves the accused person with a criminal record for one year but no probationary period. 

A suspended sentence is another option open to judges in some cases. The defendant is convicted and has a criminal record but the judge suspends sentencing while the defendant is released on various conditions set out in a probation order. If all the terms of the order are met, the sentence ends upon completion of the probationary period.

Another potential sentencing option is an intermittent sentence, where the offender serves time in jail on weekends while continuing to work and earn an income.

Do you have to register with the sex offender’s registry if you are given probation?

Anyone convicted of a sex offence in Canada and who faces jail and probation must register with the National Sex Offender Registry (NSOR) under the terms of the Sexual Offender Information Registry Act (SOIRA).

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.