WHAT IS SEXUAL ASSAULT?
Sexual assault consists of unwanted touching or other physical contact which is sexual in nature. The act of sexual assault does not depend solely on contact with any specific part of the human anatomy but rather the act of a sexual nature that violates the sexual integrity of the complainant. To determine whether touching has a sexual aspect, a court will consider the nature of the conduct, the situation in which it occurred, the words and gestures of the accompanying act, and all other circumstances, including threats, which may or may not be accompanying by the use of force.
WHAT IS THE MEANING OF CONSENT?
Before a person can give consent to an act, he or she must understand the nature of that act and freely consent to it. Consent is defined as the voluntary agreement of the complainant to engage in the sexual activity in question. The law draws a distinction between mere submission and positive consent. For greater certainty, subsection 273.1(2) of the Criminal Code sets out specific situations where there is no consent in law; no consent is obtained:
- where the agreement is expressed by the words or conduct of a person other than the complainant
- where the complainant is incapable of consenting to the activity
- where the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority
- where the complainant expresses, by words or conduct, a lack of agreement to engage in the activity, or
- where the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
Note that these are not the only situations where there is no consent.
WHAT IS THE AGE OF CONSENT IN CANADA?
In Canada, persons under a certain age cannot consent to sexual acts as a matter of law. The age of consent, refers to the age at which a young person can legally consent to sexual activity. The age of consent for sexual activity is 16 years.
There are some exceptions to this rule. For example, a person who is 14 or 15 year old can consent to sexual activity with a partner as long as the partner is less than five years older and there is no relationship of trust, authority or dependency or any other exploitation of the young person.
There is also a “closeinage”
exception for 12 and 13 year olds: a 12 or 13 year old can consent to sexual activity with another young person who is less than two years older and with whom there is no relationship of trust, authority or dependency or other exploitation of the young person.
All sexual activity without consent, regardless of age, is a criminal offence.
WHAT ARE THE POSSIBLE PENALTIES FOR SEXUAL ASSAULT?
The crime of sexual assault covers such a wide range of acts, therefore the law gives Judges a great deal of choice when deciding what the most appropriate punishment is for each case. Although the judge can decide on the punishment from a wide range of options, the maximum possible sentence depends on the crime.
Generally speaking, a conviction for a major sexual assault will nearly always attract a lengthy jail sentence. For less serious offences which do not fall into the category of a “major” sexual assault jail still remains a real possibility in most cases.
| Crime | Maximum Sentence |
| Aggravated Sexual Assault | life in prison – max 25 years |
| Sexual Assault with a Weapon, Threats to a third party or bodily harm | 14 years in prison |
| Sexual Assault tried as an indictable offence | 10 years in prison |
| Sexual Assault tried as a summary conviction offence | 6 months in jail and a $2,000 fine |
WHAT SHOULD I DO IF THE POLICE WANT TO SPEAK TO ME?
Always speak to a lawyer prior to discussing the allegations with the police. It is common for police to invite you tell “your side of the story” prior to laying a charge. A criminal defence lawyer can assist you in understanding your legal rights and responsibilities prior to speaking to police. Even if you are innocent, statements made to police can impact your defence.
If you are currently facing sexual assault charges, think you may be under investigation, or have been asked to speak to police, contact us to discuss your case. We offer a free, no obligation initial consultation for individuals who want to discuss their case with a qualified criminal defence lawyer. Our firm will handle your case with professionalism and discretion.