Sexual assault charges (s. 271 Criminal Code of Canada): Answers to Frequently Asked Questions

Sexual Assault Charges in Canada Defnding Sexual Assault Charges

When a person is charged with sexual assault under section 271 of the Criminal Code, several common questions arise. We try to answer those frequently asked here:

Question: “What is ‘Sexual Assault’ under section 271 of the Criminal Code?”

Sexual assault is any sexual contact with another person without that person’s consent.

You will be guilty of sexual assault if the Crown prosecutor proves the following beyond a reasonable doubt.

  1. You committed an assault of a sexual nature

Section 265(1) of the Criminal Code identifies three types of assault. Sexual assault means that you committed one of these assaults and that the assault had a sexual element.

a) Without the consent of another person, you apply force to that person, directly or indirectly (e.g., you punch a person or throw a rock at them).

Most sexual assaults fall are this type. In these cases, the Crown prosecutor must prove that you touched a person in sexual circumstances without their consent. The touch may be direct or indirect. Examples of indirect touch might include using an object to touch the victim or ejaculating in the vicinity of the victim.

b) You attempt or threaten, by act, or gesture, to apply force to another person and that person has reasonable grounds to believe that you will follow through.

You may be criminally liable for this type of assault if:

i. You make a credible attempt to commit a sexual assault but do not complete your purpose. For example, you pass out drunk before you touch the alleged victim.

ii. You threaten by more than mere words to sexually touch another person.

iii. You threaten by more than mere words to apply non-sexual force to another person if they do not engage in sexual activity with you.

c) While openly carrying a weapon, you accost, impede, or beg another person.

This type of assault is almost always sexual assault with a weapon, which is a separate criminal offence.

  1. You acted intentionally.

You must intend to complete the act. This intention does not require a sexual motivation. For example, as a joke, you touched a person’s genitals without their consent. Your motivation for touching would be irrelevant. It would not matter that you didn’t touch the person for sexual gratification. Intending to touch the person would suffice.

On the other hand, an accidental touch would not be enough. For instance, while falling, you tried to grab anything for balance and accidentally touched a person’s breasts. Here, the non-consensual touching was of a sexual nature. But because you did not intend for it to happen, you did not commit a sexual assault.

  1. You were aware of, wilfully blind to, or reckless to the person’s lack of consent to the sexual act.                                                                                      

Courts determine consent by looking to the alleged victim’s state of mind. Once the Crown prosecutor proves beyond a reasonable doubt that the alleged victim did not consent, the question then turns to your state of mind.

Three states of mind would suffice:

  • You knew the alleged victim was not consenting.
  • You were wilfully blind to the lack of consent. In other words, you knew that you needed to inquire further but chose not to because you didn’t want to learn the truth. For example, you had sex with an alleged victim who appeared to be very frightened of you. You did not ask any questions to determine whether they were consenting because you did not want them to say no.
  • You were reckless, which means you had reason to believe the alleged victim might not have consented but did not take any steps to reduce the risk of a sexual assault. For instance, you had sex with someone and did nothing to obtain consent.

If none of these three states would apply in your case, the defence of honest but mistaken belief might be appropriate. This defence is applicable when the alleged victim did not consent, but you believed they did and took reasonable steps in the circumstances. Case in point, you had sex with a person whose body language suggested they were enthusiastically consenting when, in fact, they were not. You could rely on your honest mistake as a defence to a sexual assault allegation.

Question: “We have engaged in consensual sexual activity many times before. How could this time be sexual assault?”

Consenting in the past does not mean a person is consenting in the present. Consent to sexual activity must be active and ongoing.

In some cases, you may rely on past sexual encounters for a defence of honest but mistaken belief. However, raising any evidence of or asking about prior sexual activity requires permission from the court. Obtaining this permission generally involves submitting written materials and an oral hearing.

Question: “They agreed in advance. Is that enough?”

No. A person cannot give advanced consent to sexual activity in law.

Question: “They agreed to rough sex. But I now stand charged?”

Canadian law does not allow consent to bodily harm during sex. Inflicting pain that is more than trivial or short-lived is prohibited. For example, light slapping may be permissible, but punching would not be.

Question: “I engaged in sexual activity with a person who was drunk or high on drugs. Is that sexual assault?”

Usually, no.

However, you would commit a sexual assault if you engaged in sexual activity with a person who was intoxicated to the point of being unable to:

  • know they were even engaged in sexual activity; or
  • incapable of providing or refusing consent.

 

Question: “I got extremely drunk or high on drugs when I had sex with someone? Is that a defence?”

No.

In extraordinarily rare cases, intoxication to the point of being unable to know what you were doing may be a defence provided that the intoxication was not self-imposed. This defence is called automatism. The suitability of the automatism for sexual assault cases is currently pending before the Supreme Court of Canada. But we cannot emphasize enough that this defence is tremendously rare and very unlikely to be available to you.

Question: “If I am charged, will I wait in jail until my trial date?”

After you are charged, you will likely be released from police custody, or released on bail as you await trial.

The two most likely forms of release are an undertaking to a peace officer or a “recognizance” (i.e,, bail).

An undertaking to a peace officer or officer in charge requires you to agree to certain conditions upon your release. In sexual assault cases, these conditions almost always include not communicating or contacting the alleged victim.

In many cases, the police will hold you for a bail hearing, which is when they decide to keep you in custody and bring you before a court to decide whether you should be released. The law requires that police bring you before the court within 24 hours. Once you are before the court, a bail hearing may commence right away, or it may be adjourned up to three days if so requested and appropriate. No bail hearing may be adjourned more than three days without your consent.

At a bail hearing, you may have to submit a robust release plan to satisfy the court that you will not flee the jurisdiction or put others at risk.

Question: “What happens as I await trial on a sexual assault charge?”

Before trial, you will have to make numerous appearances in court to provide updates on the status of the case. These appearances are not an opportunity to discuss the evidence in your case. If you are represented, your lawyer will appear on your behalf.

Usually some time before or soon after the first appearance, the Crown will send you disclosure. Disclosure is all the relevant information about your case that the Crown and police have.

Upon receiving disclosure, your lawyer and the Crown prosecutor will engage in resolution discussions. The Crown generally does not engage in such discussions with unrepresented accused.

Your lawyer will also attend a judicial pre-trial, which is a discussion with the defence, Crown prosecutor, and a judge where the judge aims to narrow the issues and move the parties to resolution.

Question: “If I am found guilty, what are the penalties to the charge of sexual assault?”

The answer to this question depends on how the Crown prosecutor decides to proceed.

Sexual assault is a hybrid offence. That means the Crown prosecutor can choose to pursue the case by indictment or summarily. Indictments follow conduct that the Crown deems very serious. A summary offence is the Canadian equivalent of a misdemeanour and is a matter the Crown aims to address relatively quickly.

With hybrid offences, the Crown has complete discretion to decide whether to proceed by indictment or summarily. A court cannot intervene.

If the Crown elects by indictment, the maximum penalty is ten years. There is no mandatory minimum unless the victim is under 16 years old, in which case the minimum sentence is one year imprisonment, and the maximum is 14 years.

If the Crown elects summarily, the maximum penalty is 18 months imprisonment. There is no mandatory minimum unless the victim is under 16 years old, in which case the minimum sentence is six months imprisonment, and a maximum is two years less a day.