In Canada, a Sexual Assault is defined as an Assault which is committed in the circumstances of a sexual nature such that the sexual integrity of the victim is violated. To determine whether an Assault is sexual in nature, the court will look at various elements including but not limited to, the part of the body being touched, the nature of the contact, the situation in which it occurred, the words and gesture accompanying the act, and all other circumstances surrounding the conduct, including the motives of the accused person.
Sexual Assault Lawyer in Brampton
Criminal Code of Canada – Definition of ‘Sexual Assault’
Section 265 of the Criminal Code of Canada outlines the offences of Assault and Sexual Assault as follows:
A person commits an “Assault” when:
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) This section applies to all forms of Assault, including Sexual Assault, Sexual Assault with a weapon, threats to a third party or causing bodily harm and aggravated Sexual Assault:
(a) obtained where the complainant submits or does not resist by reason of the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
(3) Where the accused alleges that he believed that the complainant consented to the conduct that is the subject matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
The offence of Sexual Assault as detailed in section 265 of the Criminal Code of Canada captures all forms of Sexual Assault; there is no separate offence of Rape, for example. This means that the offence is a very broad one, which can capture Sexual Assaults of various levels of severity.
In R. v. D.C., [2020] O.J. No. 1123, the Court affirmed the law on Sexual Assault, and explained that to be found guilty of Sexual Assault, the prosecutor must prove beyond a reasonable doubt: “an intentional direct or indirect application of force by the accused to the complainant, of a sexual nature, in the absence of consent.”
In determining what constitutes force “of a sexual nature”, the Court in R. v. A.P., [2019] O.J. No. 6364, affirmed that the test to be applied is an objective one. The Court also explained the mens rea, or mental element, that the Crown must prove for one to be found guilty of Sexual Assault: (1) that the accused intentionally acted; and (2) that the accused had to be aware or was willfully blind or reckless to the victim’s lack of consent to the sexual act.
Consent is purely evaluated by the subjective state of mind of the complainant, directed towards the application of force at issue. Whether or not there was consent can be determined by reference to evidence of the complainant’s words, thoughts, and actions. However, the complainant’s claims about consent are subject to considerations of credibility and reliability. Thus, in R. v. G.F., [2019] O.J. No. 3106, the Court affirmed the Court’s comments in R. v. J.A., 2011 SCC 28 that consent is “the conscious agreement of the complainant to engage in every sexual act in a particular encounter.”
Consent requires an “operating mind”. Absent the conditions found in section 273.1(2) (discussed below), a person has the requisite capacity to consent where they have “the ability to understand and agree (or not agree) to engage in the sexual activity in question” (R. v. McKitty, [2019] O.J. No. 1214). In R. v. McKitty, [2019] O.J. No. 1214, the complainant had been drinking to the point where she testified her intoxication level was at an “8/10”, where 10 was the highest level. The complainant also had several blackouts throughout the night. However, the Court found that “evidence of a blackout, without more, is not evidence of an incapacity to consent.”
Section 273.1(1.1), consent must be present at the time the sexual activity in question takes place. This means that while a person can initially consent to sexual activities, that consent may be revoked at any time.
The issue of consent can be broken down into a 2-step framework: (1) determine whether there was “consent”; and (2) if there was no consent, whether there are any circumstances which vitiated the apparent consent. These circumstances are listed in section 265(3) and 273.1(2) of the Criminal Code of Canada. Under section 265(3), no consent is obtained where the complainant submits or does not resist by reason of:
(a) The application of force to the complainant or to a person other than the complainant;
(b) Threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) Fraud; or
(d) The exercise of authority
Furthermore, under section 273.1(2), no consent is obtained if:
(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(a.1) the complainant is unconscious;
(b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1);
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e) 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.
In R. v. Lupi, [2019] O.J. No. 3342, the complainant agreed to have sex with the accused, but insisted that he use a condom because they did not know each other. Part way through sexual intercourse, the accused removed the condom, which the complainant did not find out about until some time later. The Court found that while the complainant did consent to having sex, this consent was vitiated under section 265(3)(c), i.e. fraud.
What other sexual offences are in the Criminal Code of Canada?
The Criminal Code of Canada also sets out other sexual offences, they are as follows:
- Child Pornography: It is against the law to make, distribute, possess, or access child pornography. Child pornography has a broad definition, but it includes (among other things) video or photographic representations of a person under age 18 engaged in explicit sexual activity, and videos or photographs that have the dominant characteristic of depicting, for a sexual purpose, the sexual organ or anal region of a person under age 18. (Criminal Code section 163.1)
- Indecent Acts: It is against the law to perform an “indecent act” in a public place in the presence of another person. Sex acts, such as masturbation, can fall under the definition of an “indecent act.” It is also against the law to expose your genitals to a person under age 16 for a sexual purpose. (Criminal Code section 173)
- Incest and Bestiality: It is against the law to have sexual intercourse with someone who you know is, by a blood relationship, your parent, child, brother, sister, half-brother, half-sister, grandparent, or grandchild. It is also against the law to have sex with an animal. (Criminal Code sections 155 and 160)
- Luring: It is against the law to use a computer system to communicate with a person who is under 18 years old for the purpose of facilitating certain sexual offences. This offence criminalizes using the Internet to communicate with under-age persons for the purpose of engaging in what would be illegal sex acts, e.g., using the Internet to ask a person under the legal age of consent to meet to have sex. (Criminal Code section 172.1)
- Sexual Interference Invitation to Sexual Touching: The offence of sexual interference makes it a criminal offence to touch a person under age 16 for a sexual purpose, with either your body or an object. The offence of invitation to sexual touching makes it a criminal offence to encourage someone under age 16 to touch another person’s body for a sexual purpose, with either the young person’s body or an object. (Criminal Code sections 151 and 152)
- Sexual Exploitation of a Minor or a Person with a Disability: If a person is under age 18, it is against the law for another person to have (or encourage) certain kinds of sexual contact with that person when (a) the other person is in a position of trust or authority, (b) the person is in a relationship of dependency, or (c) the relationship is exploitative. Likewise, if a person is in a position of trust or authority towards someone with a physical or mental disability, or if the person with a disability is in a relationship of dependency with the other person, there are circumstances where it is against the law to encourage the person with a disability to have sexual contact without their consent. (Criminal Code sections 153 and 153.1)
- Voyeurism: In certain circumstances where a person has a reasonable expectation of privacy, it is against the law to surreptitiously observe or record that person, either in person, or with an electronic device such as a video camera. Some (but not all) of the circumstances where this hidden or clandestine recording will be against the law include: (a) where the person being recorded is reasonably expected to be nude or engaged in sexual activity, or (b) where the observation or recording is made for a sexual purpose. (Criminal Code section 162)
Sexual Assault – Sentences & Punishments
A person found guilty of Sexual Assault can be subject to a broad range sentences, from no time in jail to a maximum of 18 months or 10 years depending on whether or not the crown proceeds on the Sexual Assault by “summary conviction” or whether they proceed by “indictment”. How a crown chooses to proceed is entirely within their discretion. Each case must be considered on its own facts to assess the appropriate punishment.
In addition to serving a sentence, an individual found guilty of a Sexual Assault will face the stigma of being placed on a provincial and national sex offender’s registry and as a consequence be subjected to strict supervision by the police for an indefinite period.
Why should you hire Passi & Patel if you’ve been charged with Sexual Assault?
At Passi & Patel, Brampton’s Criminal Law Firm, our Sexual Assault lawyers have extensive experience in charges of this nature. The consequences of being found guilty of a sexual offence are long-lasting, if not permanent. Call our office now to speak to an experienced Brampton criminal lawyer at (905) 459-0004 to allow us to explain how we can be of assistance. We travel throughout Ontario to defend our clients charged with sexual offences.
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