A sexual assault charge alone can affect your reputation, your employment, and your relationships long before a Court reaches a verdict. Because these cases often turn heavily on the legal concept of consent, and because the law in this area has been shaped extensively by the Courts, it is essential to understand exactly what the Crown Prosecutor must prove and what defences may be available to you.
How the Criminal Code of Canada Defines Sexual Assault
Sexual assault is addressed across three sections of the Criminal Code of Canada, reflecting different levels of severity:
- Section 271 (Sexual Assault): Any form of non-consensual touching of a sexual nature, ranging from unwanted contact to non-consensual intercourse.
- Section 272 (Sexual Assault with a weapon, threats, bodily harm and strangulation): Applies where the sexual assault involves a weapon, threats, bodily harm or strangulation to the complainant.
- Section 273 (Aggravated Sexual Assault): Applies where the sexual assault involves wounding, maiming, disfiguring, or endangering the life of the complainant their life.
Understanding Consent
Consent is the central issue in a lot of sexual assault cases. Under the Criminal Code and Supreme Court of Canada decisions, such as R. v. Ewanchuk, consent means a voluntary agreement of the complainant to engage in the specific sexual activity in question. Consent must be active and ongoing throughout the encounter. Silence, a lack of physical resistance, or the absence of a clearly spoken “no” does not amount to consent. The Criminal Code also specifies that no consent is obtained where the complainant is unconscious, incapable of consenting due to intoxication, where the accused abuses a position of trust, power, or authority, or where the complainant expresses, by words or conduct, a lack of agreement.
Penalties
Sexual assault under Section 271 carries a maximum sentence of ten years’ imprisonment on indictment, or 18 months’ imprisonment on summary conviction. There is no mandatory minimum sentence where the complainant is 16 or older. However, if the complainant is under 16 years old, a mandatory minimum sentence of 1 year imprisonment applies on indictment and a mandatory minimum sentence of 6 months’ imprisonment applies on summary conviction. Sections 272 and 273 carry significantly higher maximum penalties, including mandatory minimum sentences in cases involving a firearm or if the complainant is under 16 years old.
If there is a conviction for sexual assault, the Courts will exercise their discretion in deciding whether the accused will be registered under the Sex Offender Information Registration Act (SOIRA) and, if so, for how long.
Defending a Sexual Assault Charge
A sexual assault case is rarely as simple as one person’s word against another’s. An experienced criminal defence lawyer may explore defences and issues such as:
- Consent: Where the accused engaged in consensual sexual activity with the complainant.
- Honest but Mistaken Belief in Communicated Consent: Where the accused genuinely, and reasonably, believed the complainant had communicated consent through words or conduct, and took reasonable steps to ascertain that consent.
- Credibility and Reliability: Inconsistencies in the complainant’s recollection of what happened and the timeline of events can all be tested through cross-examination.
- Identity: In cases involving strangers or limited prior contact, the identification of the accused may be challenged.
- Charter Violations: Examples of Charter violations include but are not limited to obtaining evidence through an unlawful search of a phone or an involuntary interrogation. Successful Charter violations typically result in evidence being excluded.
Why Work With White and Jeet Law
A sexual assault allegation demands a defence that is both legally rigorous and handled with discretion. At White and Jeet Law, we carefully examine the Crown Prosecutor’s evidence, the complainant’s statements, and the circumstances of the investigation to build the strongest possible defence, while protecting your privacy and your rights at every stage of the process.
Disclaimer: The information provided in this blog post is for general educational purposes only and does not constitute legal advice. Criminal law is complex and outcomes depend heavily on the specific facts of a case. If you have been charged with a criminal offence, consult with a qualified criminal defence lawyer immediately.
