Assaults of a sexual nature are divided into 3 separate offences under the Criminal Code of Canada, more specifically; section 271 sexual assault, section 272 sexual assault with a weapon, threats to a third party or bodily harm, and section 273 aggravated sexual assault.
Sexual assault is a general intent offence. This means that the Crown Attorney does not have to prove there was a specific sexual intent by the accused, rather the Crown Attorney only needs to prove that there was touching in circumstances of a sexual nature. Whether the touching occurred under circumstances of a sexual nature is determined objectively by the reasonable observer. Factors that are taken into consideration are; the part of the body touched, the nature of the contact, the situation in which the touching occurred, any words and gestures accompanying the touching, and all other circumstances surrounding the conduct of the accused.
What constitutes consent in relation to sexual offences is different from other assault related offences. Pursuant to section 271.1, consent requires that the complainant voluntarily agreed to engage in the sexual activity in question. Consent is not considered present where the complainant; (1) has not expressly agreed by words or conduct to the sexual activity, (2) is incapable of consenting to the activity, (3) has been induced into engaging in the activity by an accused in a position of trust, power or authority, (4) expresses by words or conduct that he or she does not agree to engage in the activity, or (5) having consented to the sexual activity, expresses by words or conduct, that he or she no longer wishes to continue engaging in that activity.
The defence that an accused believed the complainant consented to engaging in the sexual activity in question will not be available as a defence where; (1) the accused’s belief arose as a result of the accused being reckless or wilfully blind or from the accused’s self-induced intoxication, or (2) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to determine whether the complainant was in fact consenting to engage in the sexual activity in question.
Upon conviction for sexual assault, a person faces a maximum penalty of 10 years imprisonment for an indictable offence, and a maximum penalty of 18 months imprisonment for a summary offence.
Where a person has been convicted of sexual assault with a weapon, threats to a third party or causing bodily harm, and a restricted or prohibited firearm is used or where the offence was committed for the benefit of, at the direction of, or in association with a criminal organization, that person is liable to a maximum penalty of 14 years imprisonment. Where the offence is committed under any of the circumstances listed above, there is a minimum penalty of 5 years imprisonment for a first offence, and a minimum of 7 years imprisonment for a second and any subsequent offence. In any other circumstance where a firearm is used in the commission of the offence, upon conviction a person is liable to a minimum penalty of 4 years imprisonment and a maximum of 14 years imprisonment. In any other case where there is no firearm used in the commission of the offence, a person is liable to a maximum of 14 years imprisonment.
With respect to aggravated sexual assault, the only differences in penalty to that of sexual assault with a weapon are that aggravated sexual assault carries with a maximum penalty of life imprisonment in any other case where a firearm was used in the commission of the offence, and a maximum penalty of life imprisonment where no firearm was used.
Sexual assault, sexual assault with a weapon and aggravated sexual assault are all primary designated offences for the purpose of making a DNA data bank order.
Upon conviction, where the Crown Attorney requests, the judge shall also make an order requiring the offender to comply with the Sex Offender Information Registration Act.