Punishable under multiple offences in the Criminal Code of Canada, sexual assault may be prosecuted as either a summary or indictable offence, with maximum penalties of 18 months and ten years imprisonment, respectively. Penalties depend on the type, manner and outcome of the assault.
Sexual Assault Definition
Classified according to type (such as aggravated, weaponed or violent) and resulting damages, sexual assault under Canadian criminal law describes any intentional unwanted physical contact of a sexual nature, ranging from unwanted touching, kissing, or hugging to invasive violations.
What is Sexual Assault?
You may be charged with sexual assault for intentionally engaging in unwanted sexual touching, making verbal or gestured threats of a sexual nature, or confronting a person sexually while openly displaying a weapon.
To prove sexual assault beyond a reasonable doubt, the Crown must demonstrate the contact occurred and that it was intentional, sexual in nature and non consensual.
Intention to sexually touch the complainant, knowing that the complainant does not consent to being touched, or being reckless or wilfully blind to a lack of consent, either by words or actions, from the complainant must be demonstrated by the Crown.
In determining if the contact was sexual in nature, the court may look at the totality of the circumstances, including:
- Part of the body touched
- Nature of the contact
- Situation in which it occurred
- Words and gestures accompanying the act
- Other circumstances surrounding the conduct, including threats not accompanied by force
- Intent or purpose of the person committing the act
Sexual Assault and Consent
Sexual activity is only legal when both parties consent. Consent is defined in section 273.1 of Canada’s Criminal Code as the voluntary agreement to engage in the sexual activity in question — making the act of the offence of sexual assault is unwanted sexual contact.
It is the responsibility of the person initiating or pursuing sexual activity to ensure consent. Consent cannot be implied. The complainant must agree to the specific sex act, and this consent can later be withdrawn by the complainant’s words or conduct.
An intoxicated person can consent to sexual activity provided they have the capacity to do so. Capacity refers to the ability to be aware, make decisions, and act upon them. The complainant must be conscious throughout the sexual activity in question and possess the legal capacity to consent.
Consent is not valid if it is obtained via application of force, threats or fear of the application of force, fraud, or exercise of authority, and is further invalidated if:
- It is given by someone other than the complainant
- The complainant is unable to consent
- It is obtained as a result of the abuse of a position of trust or authority
- The complainant expresses a lack of agreement to engage in the activity by words or conduct
Age of Consent to Sexual Activity
The age of consent to sexual activity in Canada is 16 years. There are close in age exceptions for 14 and 15 year olds and 12 and 13 year olds, who can consent to sexual activity with partners less than five and two years older, respectively. Age of consent laws apply to all forms of sexual activity, including kissing, touching and intercourse, and require there be no relationship of trust, authority or dependency between parties.
Sexual Assault with a Weapon
Sexual assault with a weapon occurs when you carry, use or threaten to use a weapon or imitation weapon in committing a sexual assault. A purely indictable offence, sexual assault with a weapon is punishable by up to 14 years imprisonment.
Sexual Assault Causing Bodily Harm
Sexual assault causing bodily harm occurs when you physically injure the victim during a sexual assault. A purely indictable offence, sexual assault with a weapon is punishable by up to 14 years imprisonment.
Aggravated Sexual Assault
Describing a more severe outcome than sexual assault causing bodily harm, aggravated sexual assault occurs when, in the assaultive process, you wound, maim disfigure or endanger the life of the victim. A purely indictable offence, aggravated sexual assault is punishable by a maximum of life imprisonment.
Sexual Assault in the Criminal Code of Canada
Section 271 of the Criminal Code states that everyone who commits a sexual assault is guilty of
- 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
- 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.
In dealing with sexual assault with a weapon, threats to a third party or causing bodily harm, section 272 of the Criminal Code states that every person commits an offence who, in committing a sexual assault,
- carries, uses or threatens to use a weapon or an imitation of a weapon;
- threatens to cause bodily harm to a person other than the complainant;
- causes bodily harm to the complainant; (c.1) chokes, suffocates or strangles the complainant; or
- is a party to the offence with any other person.
Concerning aggravated sexual assault, section 273 of the Criminal Code states that everyone commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.
Sexual Assault Penalties
Penalties for sexual assault depend on the type (such as aggravated, weaponed or violent), manner and toll (physical or emotional) of the assault. In determining what sentence to seek, the Crown will assess the extent of the assaultive behaviour, outcome and previous and subsequent charges. For less severe sexual offences, like those involving the reasonable fear of sexual assault, you may alternately enter a peace bond.
Consequences for Sexual Assault
- Up to 18 months in prison for a summary conviction
- Up to ten years in prison for an indictment
- Six months to two years imprisonment for a summary conviction if the victim is under 16
- One to 14 years in imprisonment for an indictable conviction if the victim is under 16
- Up to 14 years in prison for (purely indictable) sexual assaults causing bodily harm and sexual assaults with a weapon
- Up to life in prison for (purely indictable) aggravated assaults
- Registration in the National DNA Databank
- Registration in the National Sex Registry
- Possible revocation of immigration status
- Possible peace bond for a less severe offence
- Compensation to victim
- Criminal record
A statutory peace bond may be used when you enter an agreement in return for the Crown Attorney withdrawing charges. Peace bonds are not an admission of guilt, but an acknowledgment the victim had reasonable grounds to fear you would commit a sexual offence against them. Upon signing a peace pond, your charges are withdrawn and you do not gain a criminal record.
Statutory peace bonds require you to agree to certain conditions for a length of time not exceeding 12 months. Conditions may include:
- Law abiding behaviour
- Surrendering weapons and firearms
- Attending anger management counselling
- Abstaining from alcohol
- Avoiding direct and indirect communication with the victim
- Avoiding the victim’s residence, business, school, place of worship and other frequented establishments