What is Sexual Assault?

Sexual Assault is described as any assault that is sexual in nature and violates the sexual integrity of the person. Were the circumstances of a sexual nature? The Courts will apply an objective test, visible to a reasonable observer, to determine whether the assault is sexual in nature. The Courts will consider the following:

  • The part of the body touched
  • The nature of the contact
  • The situation in which the contact occurred
  • The words and gestures accompanying the act
  • The motive of the accused, especially whether it is sexual gratification
  • Any threats that may or may not be accompanied by force

The victim in a sexual assault can be male or female, and the attacker can be of the same sex as the victim. Furthermore, a spouse may be charged with committing a sexual assault upon the other spouse.

Consent

Section 273.1(1) of the Criminal Code defines consent as the complainant's voluntary agreement to engage in the particular sexual activity. The principles of consent that apply to assault will also apply to sexual assault. The victim of any type of sexual touching must willingly consent to the act, and must fully comprehend and understand the nature of the sexual act being consented to. Consent defined literally means the voluntary agreement of the complainant to engage in the sexual activity in question.

No consent is obtained when:

  • The agreement is expressed by the words or conduct of another person other than the victim (complainant)
  • The complainant is incapable of consenting to the activity
  • The accused (by abusing a position of trust, power or authority) induces the complainant to engage in the act
  • The complainant expresses by words or conduct a lack of agreement to engage in the act or
  • The complainant, having consented to engage in the sexual activity, expresses (by words or conduct) a lack of agreement to continue to engage in the activity
  • The absence of consent is subjective. It is determined by reference to the complainant's actual state of mind towards the touching at the time it occurred.

Legal Age

A person who is under sixteen years of age cannot consent to sexual activity with another person who is more than five years older than them. A person who is less than fourteen years of age cannot consent to sexual activity with another person who is more than two years older than them. Regardless, a person in authority cannot partake in sexual activity with a person under the age of sixteen and use consent as a defense.

Sexual Assault has several charges which can be laid under the Criminal Code of Canada.

Sexual assault

  • S. 271 Criminal Code of Canada
  • Hybrid offence. Crown may proceed by summary conviction or by indictment (depending on circumstances of the case)
  • Indictable offence
  • 18 months / $5,000 fine - 10 years maximum
  • If convicted of sexual assault you can face a penalty (a) summary conviction: punishable up to 18 months/$5,000 fine (b) indictable offence: punishable up to 10 years

Sexual assault with weapon, threats or causing harm (no firearm)

  • S. 272(1) Criminal Code of Canada
  • Indictable offence
  • 14 years maximum

Sexual assault with weapon, threats or causing harm (use of firearm)

  • S. 272(2) Criminal Code of Canada
  • Indictable offence
  • 14 years maximum

Aggravated sexual assault (no firearm)

  • S. 273(1) Criminal Code of Canada
  • Indictable offence
  • Life imprisonment

Aggravated sexual assault (use of firearm)

  • S. 273(1) Criminal Code of Canada
  • Indictable offence
  • Life imprisonment

Contact Michel G. Fontaine today.

Sexual assault is a very complex type of criminal offence. The Supreme Court of Canada's leading case of R. v. Ewanchuk, 1999 CarswellAlta 99 (see full decision at the bottom) outlines the complex nature of a sexual assault prosecution. Michel Fontaine has advanced many successful defenses in serious sexual assault cases in the Provincial Courts of Alberta and Court of Queen's Bench of Alberta.

To schedule a consultation, call 1-800-656-7955 or in Edmonton call 780-424-8600 today or contact me online.