What are the Criminal Code provisions for sexual assault?

Under section 271 of the Criminal Code of Canada, a person can be charged for committing a sexual assault. This section of the Code gives the range of possible punishments. This range will vary depending on how the Crown Attorney chooses to prosecute the case. If the Crown Attorney prosecutes the case by indictment (used in the more serious cases), the maximum is ten (10) years in jail. If the Crown Attorney chooses summary conviction (less serious cases, and a faster procedure), the maximum punishment is eighteen (18) months. The range of possible sentences will also change depending on the age of the victim. For more information on this, see our article on the minimum possible sentence for sexual assault in Canada.

Even though this part of the Code gives the possible sentences for sexual assault, it does not define sexual assault. In fact, it simply says “sexual assault” as though no definition is necessary. In order to know the meaning of the phrase, we have to consider what an “assault” is.

The definition of “assault”

Section 265(1) of the Code gives three examples of when someone assaults another person. The first is when a person directly or indirectly applies force to another person without that other person’s consent. The second is by attempting or threatening to apply force without the second person’s consent. Lastly, if a person is holding a weapon and stops or interferes with another person, that person will be guilty of assault.

How much force is required for an action to be an assault?

Our courts have said that an assault can take place even with the least amount of touching. This is a very broad definition. In fact, this can lead to some very strange consequences. If a person taps someone on the shoulder to get their attention, that would technically be an assault. Another example of an assault would be a father trying to put a scarf on his daughter while she refuses to put it on. The Supreme Court of Canada has recognized the possibility of these absurd consequences, and has concluded that the Government of Canada would not intend for those kind of situations to happen. It is up to the courts to interpret the meaning of “assault” and to give it a clearer meaning over time as different cases come up.

It must be an intentional application of force

It is important to remember that in order for someone to be guilty of an assault, they must have intentionally applied the force used. There have been cases where a person hit another person out of carelessness. In that case, the person was not found guilty of assault, as there was no intention to apply the force. Similarly, in cases where a person has hit another person as a reflex, there was no underlying intention. That person was also not guilty of assault.

An assault that is sexual in nature

Under section 265(2) of the Code, the definition of assault applies to all forms of assault, including sexual assault. From this, we can see that a sexual assault is an assault that is sexual in nature. Put another way, it is an assault that takes place in circumstances that violate the sexual dignity of another person.

What does it mean for an assault to be sexual in nature? Whether the assault is sexual is determined by asking whether a reasonable person, in light of all the circumstances, would say the assault was sexual. In order to determine this, the court looks to many factors, such as the body part that was touched, the situation in which the touching occurred, the words and gestures that happened along with the act, and any other circumstance surrounding the action.

Sexual gratification not necessary

Some people may think that it is only a sexual assault if it was committed for the purpose of sexual pleasure or gratification. This is not true. There have been cases where a person committed an assault for the sake of disciplining his child. The courts considered the nature of the discipline (the accused had squeezed his son’s genitals) and found him guilty of sexual assault.

In another case, an accused person had touched a person’s breasts and genitals as a joke. Though there was no intent to receive sexual gratification from this action, the accused was still charged with and convicted of sexual assault. This is important to remember, as many people think that sexual pleasure is a necessary element of sexual assault.

Consent – The victim’s state of mind

Lack of consent is one of the most complicated elements of a sexual assault. Determining whether there was no consent in a case of sexual assault is a matter of looking at the victim’s actual state of mind at the time the assault happened. Obviously, judges and juries cannot know with absolute certainty what the victim was thinking at the time. If a person claims that she did not consent, that statement will have to be weighed with all of the other evidence, including her actions at the time of the alleged assault. If the judge or jury decides that they believe the victim when she says she did not consent, then the judge or jury will have to conclude that there was, in fact, no consent.

What about the accused person’s state of mind?

Even though the question of consent is determined by looking at what the victim was thinking or feeling at the time, the accused person’s state of mind is also important. As we have already discussed, the accused person has to intend to touch the other person. The accused also has to know that the person is not consenting to the touching – that is, that the touching is unwanted sexual touching. Even if the accused person does not know with absolute certainty that there is no consent, that person might still be guilty. If a person is reckless with regard to consent, that will count as sexual assault. For a person to be reckless, they must be aware that there is a risk of the touching being unwanted, and they go ahead with the touching anyway. Another way for a person to be guilty of sexual assault is if that person is “wilfully blind” to the lack of consent. A person is wilfully blind when they realize that they should probably ask questions about whether or not someone is consenting, but they choose not to ask those questions and proceed with the touching anyway.

What if the accused person was drunk?

It is not a defence for an accused person to say they were drunk at the time of the assault. Some cases have found that extreme intoxication will work as a defence to sexual assault, but those cases are very rare. The drunkenness would have to be to the point of the accused being unaware of what he was doing. Further, if the state of intoxication was self-induced (meaning the accused person got themself drunk and was not drugged or forced to drink), then the defence will likely not be successful.

What if the accused person really believed the victim was consenting?

Sometimes people think that a person is consenting when that person is not consenting. This is a situation that is common. After all, people consent to sexual activity all the time. But it is not enough for an accused person to simply believe that the victim was consenting. There must be evidence that the accused person honestly believed in the consent. There must also be evidence of some ambiguous activity or circumstance that would have explained why the lack of consent could have been understood by the accused person as actually being consent.

If the defence of honest but mistaken belief in consent is to be successful, the accused person cannot have been reckless or wilfully blind about the lack of consent. If the accused person’s belief in consent came from his own self-induced drunken state, then the defence will not work. Also, if the accused person did not take reasonable steps to figure out whether the victim was actually consenting to the sexual activity, the defence will not be successful. What counts as “reasonable steps” will depend on the circumstances the accused person knew of at the time of the assault.

Where there is no consent

Even if a victim says she will go along with a sexual act, that does not always mean she is consenting. Under section 273.1(2) of the Code, there are certain situations where a person cannot consent to sexual activity. If a person other than the victim agrees to the sexual activity, the victim does not consent. If the victim is unconscious, then they cannot consent to sexual activity. This is true even if they gave consent to the sexual activity before they were unconscious. If a person gets consent by abusing a position of trust or authority, such as an employer or a teacher, that is not considered real consent.

Silence or passivity by the victim is not the same as consent. It is not a defence to the charge of sexual assault to claim that the victim simply never said “No”.

The age of the victim matters

A person who is younger than 16 years-old cannot consent to sexual activity. Sometimes people think that they will not be charged because the victim indicated she wanted to engage in the actions.

There are some exceptions to this rule. If the complainant is 12 or 13 years-old, an accused person who is less than two years older than the complainant might not be guilty of sexual assault. The accused person cannot have been in a position of trust or an exploitative relationship with the complainant. Similarly, if the complainant is 14 or 15 years-old and the accused is less than five years older than the complainant, the accused may not be guilty of sexual assault.

Other forms of sexual assault

Sections 272 and 273 of the Criminal Code creates other forms of sexual assault. Section 272 creates the offences of sexual assault with a weapon, sexual assault with threats to a third party, and sexual assault causing bodily harm. The difference between these offences and sexual assault can be seen as pretty self-explanatory. Simply put, these are offences where someone commits a sexual assault and, in doing so, either uses (or threatens to use) a weapon, threatens to harm someone other than the victim, or causes bodily harm to the victim.

Aggravated sexual assault happens when a person, while committing a sexual assault, wounds, maims, disfigures or endangers the life of the victim. Whether or not a person will be charged with sexual assault causing bodily harm or aggravated sexual assault depends on the seriousness of the sexual violence and the injuries of the victim.

Next Steps

Canadian law takes violence against women and other forms of sexual abuse very seriously. If you have been charged with sexual assault, you should not have to face these charges alone. Lakin Afolabi is a criminal defence lawyer in Ontario who has successfully defended people accused of sexual assault. His experience and tenacity gives him an advantage that you need. Call him today for a consultation.

Lakin Afolabi LPC blog material is screened for authenticity as of the date of posting and accurately reflects the law to the best of our knowledge. Because the nature of the legal landscape is ever-changing we do not guarantee the future accuracy or completeness of this blog material past the date of posting. This material is not a replacement for advice received from our team of legal professionals. Any action you take upon the information on this website is strictly at your own risk.