Sexual Assault

In addition to sexual assault, there are numerous sexual offences under the Criminal Code, including, but not limited to:

• Sexual Assault with a Weapon;
• Aggravated Sexual Assault;
• Sexual Interference;
• Invitation to Sexual Touching;
• Sexual Exploitation;
• Sexual Exploitation of Person with a Disability;
• Luring a child for a sexual purpose;
• Making sexually explicit material available to a child;
• Child Pornography;
• Incest;
• Bestiality;
• Indecent Acts;
• Obtaining Sexual Services;
• Obtaining a Material Benefit from Sexual Services;
• Parent or Guardian Procuring Sexual Activity;
• Householder Permitting Sexual Activity;
• Procuring Sexual Services; and
• Voyeurism.

Honest but Mistaken Belief is a defence that may be raised in sexual assault cases. If the accused honestly believed the complainant was consenting, they may not have formed the requisite intent to be guilty of the offence. However, it is not a defence if the mistaken belief arose from:

In the case of sexual assault under section 271 of the Criminal Code, in addition to the identity of the accused and the date, time, and jurisdiction, the Crown must prove that the accused intended to touch the complainant in a sexual manner, knowing that the complainant was not consenting to that activity or contact.

Sexual assault under section 271 of the Criminal Code is a hybrid offence, meaning the Crown can proceed by summary conviction or indictment. The severity of the penalty varies depending on which way the Crown chooses to proceed.

Definition of Consent Under Section 273.1(1) of the Criminal Code

Section 273.1(1) of the Criminal Code defines “consent,” for the purposes of the offences of sexual assault, sexual assault with a weapon, and aggravated assault, as the voluntary agreement of the complainant to engage in the sexual activity in question.

Instances Where Consent Is Not Valid

• Consent is expressed by someone other than the complainant.
• The complainant is incapable of consenting, i.e., unconscious, mentally ill, or so affected by drugs or alcohol that they did not know what they were doing.
• Consent was obtained in advance to sexual contact, i.e., where the person gave consent and then fell asleep.
• The accused induces the complainant to engage in sexual activity by exercising a position of trust or authority.
• The complainant expresses, by words or conduct, a lack of agreement to engage in the activity.
• 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.

Sexual assault is defined as any assault of a sexual nature. In the Canadian criminal justice system, sexual assault charges are among the most serious an individual can face. If convicted, aside from jail time, a stigmatizing criminal record may follow the offender for life.

You must be at least 16 years of age to consent to sexual activity. There are exceptions to this rule if both parties are under the age of 19. The purpose of this exception is so that young teenagers do not face prosecution for engaging in consensual teenage sexual activities.

The Sexual Offender Information Registration Act (SOIRA)

The Sexual Offender Information Registration Act (SOIRA) is a database available to police that provides information about individuals convicted of sexual offences. The purpose of the database is to require convicted individuals to register so that police can prevent and investigate sexual crimes. The database includes the following information about offenders:

• Name and any alias they use;
• Date of Birth;
• Gender;
• Address of every place they have lived, worked, and volunteered;
• Address of any educational institution where they are enrolled;
• Their telephone number;
• Height and weight;
• Every distinguishing mark on their body;
• Licence plate number and vehicle make, model, year, and colour;
• Licence number and name of issuing jurisdiction(s);
• Passport number and name of issuing jurisdiction(s);
• If applicable, their military status;
• Photograph of the offender (optional).

If convicted of a “designated offence” under section 490.011(1), which includes sexual assault, you may be required to register under SOIRA. The registration requirements and length of the order depend on the applicable circumstances, including the offence and sentence:

• 10 years if the offence was prosecuted by summary conviction OR the maximum term of imprisonment for the offence is 2 or 5 years;
• 20 years if the maximum term of imprisonment was 10-14 years;
• For life if the maximum term of imprisonment is life imprisonment.

Offenders will be required to report every year, as well as notify the police if they intend to be away from their address for more than 7 days.

• Factual Innocence: If the Crown is unable to prove the essential elements of the particular offence beyond a reasonable doubt, they will have failed to discharge their burden, and the accused will be acquitted.
• Honest but Mistaken Belief in Consent: If the accused honestly believed the complainant was consenting, they may not have formed the requisite intent to be guilty of the offence. However, it is not a defence if the mistaken belief arose from:
  • The accused’s self-induced intoxication;
  • The accused’s recklessness or wilful blindness;
  • The accused did not take reasonable steps, in the circumstances known to them at the time, to ascertain that the complainant was consenting; or
  • There is evidence that the complainant’s voluntary agreement was affirmatively expressed by words or actively expressed by conduct.