Sexual Assault Lawyers

What is Sexual Assault?

Classified according to type (such as aggravated, weaponed or violent) and resulting damages, sexual assault under Canadian criminal law describes any intentional unwanted physical contact of a sexual nature, ranging from unwanted touching, kissing, or hugging to invasive violations.

You may be charged with sexual assault for intentionally engaging in unwanted sexual touching, making verbal or gestured threats of a sexual nature, or confronting a person sexually while openly displaying a weapon.

To prove sexual assault beyond a reasonable doubt, the Crown must demonstrate the contact occurred and that it was intentional, sexual in nature and non consensual.

Intention to sexually touch the complainant, knowing that the complainant does not consent to being touched, or being reckless or wilfully blind to a lack of consent, either by words or actions, from the complainant must be demonstrated by the Crown.

In determining if the contact was sexual in nature, the court may look at the totality of the circumstances, including:

• Part of the body touched
• Nature of the contact
• Situation in which it occurred
• Words and gestures accompanying the act
• Other circumstances surrounding the conduct, including threats not accompanied by force
• Intent or purpose of the person committing the act

Sexual Assault with a Weapon

Sexual assault with a weapon occurs when you carry, use or threaten to use a weapon or imitation weapon in committing a sexual assault. A purely indictable offence, sexual assault with a weapon is punishable by up to 14 years imprisonment.

Sexual Assault Causing Bodily Harm

Sexual assault causing bodily harm occurs when you physically injure the victim during a sexual assault. A purely indictable offence, sexual assault with a weapon is punishable by up to 14 years imprisonment.

Aggravated Sexual Assault

Describing a more severe outcome than sexual assault causing bodily harm, aggravated sexual assault occurs when, in the assaultive process, you wound, maim disfigure or endanger the life of the victim. A purely indictable offence, aggravated sexual assault is punishable by a maximum of life imprisonment.

Sexual Assault and Consent

Sexual activity is only legal when both parties consent. Consent is defined in section 273.1 of Canada’s Criminal Code as the voluntary agreement to engage in the sexual activity in question — making the act of the offence of sexual assault unwanted sexual contact.

It is the responsibility of the person initiating or pursuing sexual activity to ensure consent. Consent cannot be implied. The complainant must agree to the specific sex act, and this consent can later be withdrawn by the complainant’s words or conduct.

An intoxicated person can consent to sexual activity provided they have the capacity to do so. Capacity refers to the ability to be aware, make decisions, and act upon them. The complainant must be conscious throughout the sexual activity in question and possess the legal capacity to consent.

Consent is not valid if it is obtained via application of force, threats or fear of the application of force, fraud, or exercise of authority, and is further invalidated if:

• It is given by someone other than the complainant
• The complainant is unable to consent
• It is obtained as a result of the abuse of a position of trust or authority
• The complainant expresses a lack of agreement to engage in the activity by words or conduct

Age of Consent to Sexual Activity

The age of consent to sexual activity in Canada is 16 years. There are close in age exceptions for 14 and 15 year olds and 12 and 13 year olds, who can consent to sexual activity with partners less than five and two years older, respectively. Age of consent laws apply to all forms of sexual activity, including kissing, touching and intercourse, and require there be no relationship of trust, authority or dependency between parties.

Sexual Assault in the Criminal Code of Canada

Section 271 of the Criminal Code states that everyone who commits a sexual assault is guilty of

1. an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
2. an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

In dealing with sexual assault with a weapon, threats to a third party or causing bodily harm,section 272 of the Criminal Code states that every person commits an offence who, in committing a sexual assault,

1. carries, uses or threatens to use a weapon or an imitation of a weapon;
2. threatens to cause bodily harm to a person other than the complainant;
3. causes bodily harm to the complainant; (c.1) chokes, suffocates or strangles the complainant; or
4. is a party to the offence with any other person.

Concerning aggravated sexual assault, section 273 of the Criminal Code states that everyone commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.

Sexual Assault Charges

Upon an allegation of sexual assault police will most likely recommend charges to Crown Counsel. Indeed, it’s Crown Counsel, not police nor complainants, who lay charges in British Columbia. 

Should the alleged sexual assault be domestic in nature, Crown Counsel will proceed with prosecution, even if the complainant does not wish to cooperate with the investigation. Complainants therefore often seek legal advice to determine how to best navigate the criminal process and liaise with Crown Counsel.

When you are charged with assault, you will either be released by police or held for a bail hearing. Conditions will be imposed on your release regardless of whether you appear before a Justice of the Peace or are released by police.

Sexual Assault Bail Conditions

So long as you lack a history of violence, the court can usually be satisfied that releasing you from custody before trial is safe and appropriate. Your problem then becomes navigating the restrictive bail conditions imposed on your release.

Your bail conditions will likely require you to:

• Avoid all contact with the complainant
• Abstain from all direct or indirect communication with the complainant
• Avoid the complainant’s residence, business, school, place of worship and other frequented establishments
• Surrender all weapons and firearms and any related authorizations
• Not be in possession of any weapons, including knives (except for the consumption of food)
• Abstain from alcohol and non prescription drugs
• Demonstrate law abiding behaviour
• Abide by a curfew
• Provide your current address to the court (and notify the Court of any address changes)

Factors that may affect your bail conditions include your:

• Alleged assaultive behaviour
• Likelihood of attending court
• Criminal history
• History of drug and alcohol use 
• Physical state
• Mental condition
• Employment situation
• Living situation
• Standing in the community

You will not be allowed to return to your home if the complainant lives with you — even if you own the property and the complainant merely lives with you. This means that you will not be able to coordinate bill and utility payments or financial arrangements.

In certain circumstances bail conditions can be varied, but this takes time and negotiations with the Crown. Bail conditions must be complied with unless and until they are varied lest you be charged with breaching bail and jailed.

Sexual Assault Penalties

Penalties for sexual assault depend on the type (such as aggravated, weaponed or violent), manner and toll (physical or emotional) of the assault. In determining what sentence to seek, the Crown will assess the extent of the assaultive behaviour, outcome and previous and subsequent charges. 

Consequences for Sexual Assault

• Up to 18 months in prison for a summary conviction
• Up to ten years in prison for an indictment
• Six months’ to two years’ imprisonment for a summary conviction if the victim is under 16
• One to 14 years’ imprisonment for an indictable conviction if the victim is under 16
• Up to 14 years in prison for (purely indictable) sexual assaults causing bodily harm and sexual assaults with a weapon
• Up to life in prison for (purely indictable) aggravated assaults
• Registration in the National DNA Databank
• Registration in the National Sex Registry
• Possible revocation of immigration status
• Fines
• Compensation to victim
• Probation
• Criminal record

Defending Sexual Assault Charges

Sexual assault allegations require immediate legal attention. Outcomes in sexual assault cases can depend as much on the circumstances of your case as on the lawyer you hire. Retaining Pender Litigation puts not only a skilled sexual assault lawyer by your side, but our entire team at your back, bolstering your defence with our collective insight, experience and expertise. 

Ways our firm can assist you include:

• Diverting your case from the court process via peace bond
• Defending you at trial
• Sentencing

Peace Bonds

For less severe sexual offences, like those involving the reasonable fear of sexual assault, you may alternately enter a peace bond. A statutory peace bond may be used when you enter an agreement in return for the Crown Attorney withdrawing charges. Peace bonds are not an admission of guilt, but an acknowledgment the complainant had reasonable grounds to fear for their safety, or the welfare of their child, intimate partner, or property. Upon signing a peace pond, your charges are withdrawn and you do not gain a criminal record.

Statutory peace bonds require you to agree to certain conditions for a length of time not exceeding one year. Conditions may include:

• Law abiding behaviour
• Surrendering weapons and firearms
• Attending anger management counselling
• Abstaining from alcohol
• Avoiding direct and indirect communication with the victim
• Avoiding the victim’s residence, business, school, place of worship and other frequented establishments
• Reporting to a probation officer

Sexual Assault Trial Defences

Should your case go to trial, defences to sexual assault charges include (but are not limited to):

• Consent: Sometimes allegations of sexual assault are invented by people who previously consented to the sexual activity in question. Crown Counsel must demonstrate beyond a reasonable doubt that the complainant did not consent to the sexual activity. A careful examination of the complainant’s credibility and other evidence, including witness testimony, video footage, and phone and electronic records, may be sufficient to level the charges against you. 
• Mistaken belief in consent: The charge of sexual assault involves an element of intent. If you can demonstrate with evidence that you honestly and sincerely believed the complainant consented to the sexual activity in question, and that you took reasonable steps to ensure their consent, you may be able to argue that your belief in consent was mistaken. This defence is negated if 1) drugs and alcohol impaired your judgement, 2) a reckless attitude toward consent is exhibited, or 3) consent is ignored, assumed or guessed.
• Violations of the Charter of Rights and Freedoms: Speaking with the police can be detrimental to your case as your statements can be used as incriminating evidence at trial. Charter applications, motions that detail the ways in which police violated your Charter rights in a criminal investigation, can be used to seek the exclusion of this evidence. Violations that may be argued in your defence include searching your car without permission and not letting you speak with a lawyer.
• Innocence: Crown Counsel must demonstrate beyond a reasonable doubt that you were indeed there and committed, or intended to commit, the sexual assault. This defence performs well when you have an alibi — corroborated by video, eye witnesses and electronic evidence — that places you somewhere else during the assault.

Sentencing

If your case cannot be resolved by way of a peace bond, we can negotiate sentencing options with the Crown, helping you to avoid a criminal record, or ensuring your freedom is minimally curbed upon sentencing.

Learn About Sexual Assault

• What is Sexual Assault?
• Sexual Assault in the Criminal Code of Canada
• Sexual Assault Charges
• Sexual Assault Bail Conditions
• Sexual Assault Penalties
• Defending Sexual Assault Charges