In Canada, the definition of sexual assault is broad. The crime of sexual assault refers to any incident of unwanted contact of a sexual nature, including rape, oral sex, fondling, kissing and grabbing.
For an accused to be convicted of sexual assault, the judge or jury must be convinced beyond a reasonable doubt of each of the essential elements of the offence. The Crown prosecutor must prove both the actus reus and the mens rea to secure a sexual assault conviction.
Actus reus is the term used to describe the “guilty act” element of a crime. This can be either an act or a failure to act when a duty to act is implied in the law. The act must be voluntary and cannot be accidental or unconscious.
Mens rea is the term used to describe the “guilty mind” element of a crime. Mens rea refers to what the accused was thinking regarding the crime.
DEFINITION OF SEXUAL ASSAULT AS FOUND IN THE CRIMINAL CODE
The offence of sexual assault is not explicitly defined in the Criminal Code. The definition of assault is found in section 265 and includes the following elements:
- Applying force intentionally to another individual indirectly or directly without the consent of the other person;
- Threatening or attempting to use force over another individual and that causes the other person to reasonably believe that the accused has the ability to carry out their intention;
- An individual impedes or accosts another person while openly carrying or wearing a weapon (or imitation of a weapon).
Section 265 applies to all types of assault, including sexual assault.
For an offence to be considered sexual assault, there must be a sexual component to the non-consensual physical contact between the accused and the complainant. Sexual assault charges rely on the regular assault provisions of the Criminal Code, which sets out the following:
- Touching that constitute an assault within the definition of section 265(1)(a) of the Criminal Code;
- That the touching occurred under sexual circumstances;
- That there was a lack of consent to the touch by the victim.
In determining whether a reasonable person would find a sexual element to the assault, the Supreme Court of Canada has noted the following factors to consider in the case of R. v. Chase, which includes:
- The part of the body touched;
- The nature of the contact;
- The situation in which the contact occurred;
- Any words or gestures that accompanied the contact;
- The intent or purpose of the accused, including sexual gratification;
- Any other circumstances surrounding the contact.
MENS REA OF SEXUAL ASSAULT CRIMES
The Crown prosecutor must prove the following two elements to demonstrate the mens rea for a sexual assault crime:
- That the accused acted intentionally; and
- That the accused was aware of, or willfully blind or reckless to, the victim’s lack of consent to the sexual act.
There is a defence available for an accused who mistakenly believed that the complainant consented to be touched in a sexual manner. In most cases, through his/her own testimony, the accused must demonstrate that he/she honestly believed that the complainant expressed consent to participate in sexual activity.
THE ISSUE OF CONSENT
Most often determining whether a sexual assault has taken place comes down to whether or not the complainant consented to the act. In Canada, consent is a fact, not an opinion. The Crown prosecutor must prove beyond a reasonable doubt that the complainant did not consent to the sexual activity.
Section 273.1(1) of the Criminal Code defines consent as the “voluntary agreement of the complainant to engage in the sexual activity in question”. Consent may be given by an individual’s words, conduct or a combination of both. However, consent does not exist if:
- Force is applied to the victim;
- The agreement is expressed by words or conduct of a person other than the complainant;
- The complainant is incapable of consent to the activity (ie. too drunk, asleep or unconscious);
- The accused induces the complainant to take part in the activity by abusing a position of trust, power or authority;
- The complainant expresses through words or conduct a lack of agreement to engage in the activity;
- Fear of force or threats are used to coerce the complainant;
- Fraud is present; or
- The complainant, having consented to engage in the activity, expressed by words or conduct a lack of agreement to continue to engage in the activity.
The issue of consent becomes more complicated if alcohol or drugs are consumed by the accused, the complainant or both parties. The judge or jury will then have to determine at whether the complainant had the capacity to consent.
SENTENCING AFTER A SEXUAL ASSAULT CONVICTION
Sexual assault is considered a hybrid offence. There is no minimum sentence, however, the maximum that an accused can be imprisoned is 10 years. The exception to this is if the complainant is under the age of 16. In these circumstances, there is a mandatory minimum of one year in prison and a maximum sentence of 16 years in prison.
If you have been charged with sexual assault or a related charge or have an questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone serve for your convenience. We are available when you need us most.