What are the Three Levels of Sexual Assault in Canada?

In Canada, sexual assault is considered an attack of a sexual nature that violates the sexual integrity of the victim. This ultimately includes any unwanted sexual activity. 

However, the term “sexual assault” is not defined in the Criminal Code of Canada, so we must first consider the legal definition of assault: 

“A person commits an assault when, without the consent of another person, he applies force intentionally to that other person, directly or indirectly”

For a conviction, prosecutors must first prove that an assault took place and then that the essential elements of a sexual assault were present for a guilty verdict.

Under the Criminal Code Sections 271, 272 and 273 divide sexual assault into three categories or levels, dependent on the physical injuries suffered by the complainant and how the offence was carried out: 

1. Sexual assault
2. Sexual assault with a weapon, and 
3. Aggravated sexual assault

Let’s take a closer look at each of these offences.

Level one: Sexual assault

A “level one” sexual assault is where an assault was sexual in nature, but though it compromised the sexual integrity of the victim, no physical injuries were inflicted. It is a broad term that can include inappropriate touching, unwanted kissing, and oral, vaginal or anal sex. Like with all sexual assaults, the sexual contact is nonconsensual.

This is considered a hybrid offence in Canada, in which the Crown can choose to charge by an indictment or proceed summarily. 

The majority of these cases proceed summarily, with a conviction resulting in up to 18 months in jail or, if the complainant is under the age of 16, a minimum sentence of six months and/or a $5,000 fine and a maximum of two years less a day in provincial jail.

Level two: Sexual assault with a weapon

A “level two” sexual assault is where bodily harm is caused, a weapon is used or threats are made to a third party.

Sexual assault with a weapon is an indictable offence in Canada. A conviction can mean up to 10 years imprisonment or, if the complainant is under the age of 16, a minimum sentence of five years in federal prison and a maximum of 14 years.

If the sexual assault is with a restricted or prohibited firearm or with a non-prohibited firearm and relates to a criminal organization, the minimum sentence is five years incarceration for a first offence or seven years for a second offence. The maximum sentence is 14 years in prison.

For a sexual assault using a nonrestricted firearm, the minimum sentence is four years in federal prison while the maximum sentence is 14 years.

Level three: Aggravated sexual assault

“Level three” sexual assaults are aggravated sexual assaults, where the alleged assailant maims, disfigures, wounds or puts the life of the victim in danger during the commission of the assault. Aggravated sexual assault with a weapon is an indictable offence in Canada.

For aggravated sexual assault with a restricted or prohibited firearm or with a non-prohibited firearm and relating to a criminal organization, the minimum sentence is five years imprisonment for a first offence and seven years for a second offence. The maximum sentence is life imprisonment. 

For aggravated sexual assault using a non-restricted firearm, the minimum sentence is four years in prison—up to life imprisonment. 

For a conviction for aggravated sexual assault where the victim is under the age of 16, the minimum sentence is five years in prison—and the maximum is, again, life imprisonment.

Main considerations when investigating a sexual assault case

Sexual assault cases can be extremely challenging both for victims and the accused party. The outcome of most cases depends on the following key considerations:

• The nature of the physical contact
• The body part/region that was touched
• The factual situation leading up to and during the sexual assault 
• Whether gestures or words accompanied the assault
• Whether threats were made and force used
• The age of the alleged victim
• Other relevant circumstances involved in the alleged assault

The prosecution will aim to prove that touching (or the threat of touching) occurred, that the touching was sexual and that there was no consent.

Often, cases become highly complex and may hinge upon the matter of whether consent was provided—for which little significant physical evidence may be available.

Sometimes, the accused genuinely believed consent was given (i.e., an honest but mistaken belief in consent) and this may be a valid defence if the complainant was of sufficient age to provide consent. 

The age of the alleged victim and the accused’s understanding of the victim’s age are essential factors in matters of consent, often complicating cases. If alcohol or drugs were involved, this can also add complexity to cases as a person cannot give consent if he/she is extremely drunk, asleep or unconscious.

Some cases may need to take into account prior or subsequent sexual offences by the accused. If sexual assault cases are reported long after the alleged offence took place (there is no statute of limitations for sexual assault in Canada), this can make cases difficult to prosecute because of the lack of physical evidence.

How can sexual assault charges be defended in Calgary?

A sexual assault charge is not a determination of guilt. Every accused person in Canada has the right to a defence and many sexual assault cases lack the required evidence to result in a conviction. Sometimes, false allegations are made and genuine misunderstandings happen—or Charter rights are breached in the gathering of evidence, rendering it inadmissible in court.

A criminal defence lawyer experienced in sexual assault cases will investigate the case and decide on the best available defence in the circumstances. The goal will be to limit the impact on the future of the accused—because a conviction for sexual assault can result in serious consequences, such as a lengthy period of incarceration, a permanent criminal record, and mandatory registration on the National Sex Offender Registry.

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