The Criminal Code of Canada outlines the offences of sexual assault at section 271 to section 273. The Criminal Code of Canada sets out three levels of sexual assault:
- Sexual assault.
- Sexual assault with a weapon, threats to third party or causing bodily harm.
- Aggravated sexual assault.
The offence of sexual assault requires an act of unwanted sexual touching and there must be the intention to touch while knowing or being reckless or willfully blind to a lack of consent to the sexual touching. The test to be applied by the courts to determine if there is the requisite sexual nature is an objective one. The court will look to the circumstances of the individual cases to determine if a reasonable observer would view the assault as sexual in nature. The court will consider various circumstances of the case such as:
- The body part touched;
- The nature of the contact;
- Situation in which it occurred;
- The words or gestures accompanying the act; and
- All other circumstances surrounding the conduct including threats.
While the assault must be of a sexual nature there does not need to be a sexual purpose or sexual gratification for the assault to be considered a sexual assault. All that is required is that the act of touching which violates the sexual integrity of the victim. In summary, sexual assault is an assault as defined at section 265(1) of the Criminal Code with the added element that the touching is sexual in nature (Rv. Ewacnchuk, 1999 CanLii (SCC))
The second level of sexual assault is sexual assault with a weapon, threats to third party or causing bodily harm. There must be an act of unwanted sexual touching and there must be a lack of consent similar to a charge of sexual assault. However, an individual commits a sexual assault with a weapon, threats to a third party or causing bodily harm when committing the sexual assault they also:
- Carry, use or threaten to use a weapon or imitation weapon;
- Threatens to cause bodily harm to a person other than the complainant;
- Causes bodily harm to the complainant;
- Chokes, suffocates or strangles the complainant; or
- Is a party to the offence with any other person.
A person commits the third level of sexual assault, aggravated sexual assault when committing a sexual assault wounds, maims, disfigures or endangers the life of the complainant. The three levels of sexual assault are on an escalating scale of seriousness and depending on the charge could be subject to a minimum and/or maximum sentencing range. This sentencing range is dependent on the seriousness of the charge and also depends on the age of the complainant.
Online Sexual offences
Under section 172.1 of the Criminal Code it is an offence to communicate via telecommunication with a person under the age of 18 for the purposes of committing an offence. The offence requires that the communication be for the purpose of committing one of the offences listed at section 172.1 of the Criminal Code. The Criminal Code lists various offences under the child luring provision such as child pornography, sexual assault, sexual exploitation and sexual interference.
The Crown Prosecutor must prove beyond a reasonable doubt that:
- There was an intentional communication via internet;
- The accused knew or believed the individual they are communicating with was under the age of 18, or that the accused recklessly or intentionally did not realize that they were under the age of 18.
- The communication was for the purpose of committing one of the offences listed at section 1 if the Criminal Code.
The offence of child luring is a serious offence which carries both maximum and minimum sentences depending on the seriousness of the circumstances. The Crown Prosecutor can proceed with charges in two ways: by indictment or summarily. If the Crown Prosecutor proceeds with charges by indictment the maximum penalty an accused could face is 14 years in prison and the minimum penalty in one year in prison. Alternatively, if the Crown Prosecutor proceeds summarily then the accused faces a maximum penalty of two years less a day in prison and the minimum of 6 months in prison. This offence also requires an individual who is convicted to be registered with the National Sex Offender Registry and face other possible restrictions.
Under the Criminal Code section 163(1) there are four different kinds of child pornography offences:
- Accessing child pornography;
- Possessing child pornography;
- Distributing child pornography; and
- Making child pornography.
The criminal code defines child pornography at section 163.1(1) which includes photographic, film, or video representations which show a person under the age of 18 or depicts as being under the age of 18 engaged in explicit sexual act. Child pornography also includes any sort of audio, visual or written material that counsels someone to engage in a criminal sexual activity with a person under the age of 18 years old.
The punishment for child pornography offences varies depending on which of the above noted offences charged. The sentence can vary due to any aggravating factors but there are maximum and minimum sentences depending on the offence as follows:
- Accessing and Possessing child pornography: The Crown Prosecutor can chose to proceed with charges by indictment which has a maximum term of imprisonment of 10 years and the minimum term of imprisonment of one year. The Crown Prosecutor can chose to proceed summarily which results in a maximum sentence of two years less a day or a minimum sentence of six months.
- Making or distributing child pornography: The maximum term of imprisonment is 14 years and the minimum term of imprisonment is one year.
Along with imprisonment, these offences can also result in other orders such as forfeiture of any property related to the offence and registration with the National Sex Offender Registry.
There are several defences available to a person charged under section 163 of the Criminal Code, one of which is specific to child pornography offences and outlined at section 163.1(6) of the Criminal Code. This is the legitimate purpose defense. This defense arises if accused demonstrates that the material has a legitimate purpose related to the administration of justice or to science, medicine, education or art and that it does not pose a risk of harm to persons under the age of 18.
Defences Available for Sexual Offences
There are a few defences to sexual assault. One is the outright denial and another is that the complainant consented to the sexual act. The Criminal Code of Canada defines the meaning of consent at section 273.1. Consent is defined as a voluntary agreement of the complainant to engage in the sexual activity in question and consent must be in place at the time the sexual activity takes place. The Criminal Code outlines some circumstances where consent is not obtained as follows:
- The agreement to the sexual activity is expressed by words of conduct of a person other than the complainant;
- The complainant is unconscious;
- The complainant is incapable of consenting to the activity for any reason
- The accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
- The complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
- 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.
Note that this is not an extensive list of all the circumstances in which consent is not obtained and the court can consider other circumstances as well. The Crown Counsel must prove beyond a reasonable doubt that the complainant did not or could not consent. The lack of consent must be determined by the court by considering the complainant’s subjective internal state of mind towards the sexual act at the time. This means the court must weigh the complainant’s statement that he or she did not consent against all other evidence available that may indicate otherwise. This defense is pretty rare because the internal state of mind of the complainant usually determines whether they consented to the sexual act. Meaning that if the complainant is saying he or she did not consent unless there is substantial evidence contradicting this the court is likely to accept that there was a lack of consent.
Another defence to sexual assault is honest but mistaken belief of consent. In order to establish this defence the accused must prove that he or she honestly thought that the complainant consented to the sexual act. The defence requires:
- Evidence that the accused took reasonable steps to ascertain consent and believed the complainant was consenting and this belief cannot have arose as a result of self-induced intoxication, reckless or willful blindness or any other circumstance that the Court may consider that consent was not obtained (section 273.2 of the Criminal Code);
- Evidence that the complainant in fact refused consent or was not capable of consenting;
- Evidence of ambiguity which might explain how the lack of consent may have honestly been understood as consent.
A final defense which applies only to sexual offences involving minors is the honest and mistaken belief that the complainant was over the age of consent. This defense is only available if the accused took reasonable steps to ascertain the age of the person. The Crown must prove that the accused failed to take sufficient steps to ascertain the complainant’s age. Different offences may require a different standard of determining whether the accused took sufficient steps to ascertain the complainant’s age. Some offences require the accused to take “all reasonable steps” and other offences only require the accused take “reasonable steps” to ascertain the age of the complainant. When assessing whether “reasonable steps” were taken the specific circumstances of each case must be taken into account. The test in determining if reasonable steps have been taken is objective and the Court must assess if the steps taken by the accused to ascertain the age of complainant were that of a reasonable person would have taken in a similar situation.
810.1 preventative orders and Identification or Registry Databases
Under section 810.1 of the Criminal Code the court may impose conditions that restrict the movements and behaviours of persons who are at high risk for committing sexual offences against a child under the age of sixteen. Prior to the person completing prison sentence or the period of probation, the Crown Counsel can apply for a preventative order if there is a reasonable grounds to fear that the person represents a serious risk to public safety. If the court agrees they can impose a section 810.1 recognizance with certain conditions for a period of up to a year or up to two years if the person has a prior related conviction. On application to the court the Crown Counsel for a section 810.1 order, the court must be satisfied that there are reasonable grounds to fear that the person will commit sexual offence against a person less than 16 years of age. If a court determines that there is a basis it can impose conditions relating to:
- Electronic monitoring;
- Reporting to a probation officer and police;
- No contact with persons or classes or persons, for example anyone under the age of 16;
- Report relationships to authorities such as intimate partners and children;
- Not possessing things such as personal computer or devices capable of accessing internet; and
- Restrictions on movement such as not attending public places where persons under 16 are likely to be present such as schools or playgrounds.
In British Columbia, individuals who are convicted of designated sex offences can be ordered by the Court to be registered in the National Sex Offender Registry and made to report annually to police and keep police informed of any changes to name or address. There is also a program to identify high risk offenders known as the High Risk Offenders Identification Program (“HROIP”) which gathers and maintains information of the offender’s criminal history. The HROIP participates in a national program that allows them to share information between the prosecution services across Canada.
These offences are serious in nature and can result in serious penalties. Our lawyers can assist you, contact our office and arrange a consultation.