Sexual Assault

Under Canada’s Criminal Code R.S.C., 1985, c. C-46, you may be charged for the following sexual assault:

Sexual Interference

Sexual interference is when a person, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of another person under the age of 16 years

Punishment

Hybrid – By indictment or summary conviction

(a) Indictment

Maximum: 14 years 

Minimum: 1 year

(b) Summary Conviction

Maximum: imprisonment for two years less a day 

Minimum: imprisonment for 90 days.

Invitation to sexual touching

Invitation to sexual touching is when a person, for a sexual purpose, invites, counsels, or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16 years.

Punishment

Hybrid – By indictment or summary conviction

(a) Indictment

Maximum: 14 years 

Minimum: 1 year

(b) Summary Conviction

Maximum: imprisonment for two years less a day 

Minimum: imprisonment for 90 days.

Sexual Exploitation

Sexual exploitation is when a person in a position of trust or authority, with whom the young person is in a relationship of dependency or in a relationship that is exploitative of the young person, and

(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or

(b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person.

Definition of a young person 

According to the Criminal Code, a Young person means a person 16 years of age or more but under the age of eighteen years.

Punishment

Hybrid – By indictment or summary conviction

(a) Indictment

     Maximum: 14 years 

     Minimum: 1 year

(b) Summary Conviction

     Maximum: imprisonment for two years less a day 

     Minimum: imprisonment for 90 days.

Inference of sexual exploitation 

In accordance with the Criminal Code, a judge may infer that a person is in a relationship with a young person that is exploitative of the young person from the nature and circumstances of the relationship, including:

(a) the age of the young person;

(b) the age difference between the person and the young person;

(c) the evolution of the relationship; and

(d) the degree of control or influence the person has over the young person.

• Sexual exploitation of a person with a disability 

It is a distinguished offence of sexual exploitation when committed towards a person with a mental or physical disability. 

Punishment

Hybrid – By indictment or summary conviction

(a) Indictment

     Imprisonment up to 5 years

(b) Summary Conviction

     A fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or both.

Sexual Assault  

Sexual assault is an assault of a sexual nature where the sexual integrity of the victim is violated.

The act of assault is defined in the Criminal Code as follows: 

(a) Applying force intentionally to that other person, directly or indirectly, without consent

(b) Attempting or threatening, by an act or a gesture, to apply force to another person, if he has, or causes that other person to reasonably believe that he has the present ability to effect his purpose; or

(c) Accosting or impeding another person or begging while openly wearing or carrying a weapon or an imitation of a weapon

There are three different sexual assault offences with varying degree of severity of the act:

1) Sexual Assault 

Punishment

Hybrid offence: indictment or summary conviction

Indictment

Minimum Imprisonment of 1 year up to a maximum of 10 years or up to 14 years (if complainant under 16 years old)

Summary conviction 

Minimum Imprisonment of 6 months up to maximum of 18 months or up to 2 years less a day (if complainant under 16 years old)

2) Sexual Assault with a weapon, threats to a third party or causing bodily harm 

It is when while committing sexual assault;

(a) a person carries, uses, or threatens to use a weapon or an imitation of a weapon;

(b) A person threatens to cause bodily harm to another person, other than the complainant;

(c) A person causes bodily harm to the complainant;

(c.1) A person chokes, suffocates, or strangles the complainant; or

(d) A person is an involved party to the offence

Punishment

Indictment only

(a) Restricted firearm or prohibited firearm used or any firearm used and the offence in connection to a criminal organization

Maximum: up to 14 years of imprisonment

Minimum: 5 years of imprisonment (1st offence)

                7 years of imprisonment (2nd & subsequent offences)

(a.1) Other instances where Firearm used to imprisonment for a term

        Minimum of 4 years up to a maximum of 14 years

(a.2) A complainant under 16 years of age

        Minimum of 5 years of imprisonment up to a maximum of imprisonment for life

(b) Any other instances

     Imprisonment up to 14 years.

3) Aggravated Sexual Assault

It is when a person wounds, maims, disfigures or endangers the life of the complainant while committing sexual assault.

Punishment

Indictment only

(a) Restricted firearm or prohibited firearm used or any firearm used and the offence in connection to criminal organization

Maximum: imprisonment for life 

Minimum: 5 years of imprisonment (1st offence) 

                7 years of imprisonment (2nd & subsequent offences)

(a.1) Any other case where a firearm is used in committing the offence

Maximum: imprisonment for life

Minimum: 4 years of imprisonment

(a.2) Complainant is under the age of 16 years

Maximum: imprisonment for life

minimum: 5 years of imprisonment

(b) Any other case

Imprisonment for life.

Consent

Within the context of sexual offences, the element of consent is of crucial importance. 

According to the Criminal Code, consent means the voluntary agreement of the complainant

to engage in the sexual activity in question. Consent must be present when the sexual activity in question takes place. 

It is deemed that there is no consent obtained if:

1. a) If agreement expressed in words or by conduct of someone other than the complainant

a.1) If complainant is unconscious

1. b) if complainant incapable of consenting due to reasons other than unconsciousness
2. c) if accused abuses position of power, trust, or authority to induce consent from the complainant
3. d) If the complainant expresses through words or conduct a lack of agreement to engage in the sexual activity.
4. e) If the complainant, having agreed to engage in the sexual activity, expresses through words or conduct a lack of agreement to continue with the sexual activity.

Belief that there was consent from the complainant cannot be a defence if: 

(a) The accused’s belief arose from  

(i) intoxication induced by the accused,

(ii) the accused’s recklessness or wilful blindness, or

(iii) situations where it is deemed no consent obtained under Criminal Code

(b) The accused did not take reasonable steps to make sure/verify that the complainant was consenting; or

(c) No evidence found the complainant’s voluntary agreement to the activity was expressed by words or conduct

If you need more information, read the frequently asked question about criminal law in Canada.