Sexual Offences
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Table of Contents
Introduction
This section will give a brief description or history of the offences included in “sexual offences”.
In order to be convicted of any sexual charge, there are two kinds of evidence that must be presented in court: evidence of the actus reus and evidence of the mens rea.
The actus reus refers to the “guilty act” element of the crime, while the mens rea refers to the mental element, or the “guilty mind”.
Interestingly, the actus reus is not always as simple as committing the act — it can include a failure to act when a duty is implied in law. Additionally, the act must be done voluntarily. This means that if a touch is required for the offence to be proven, the touch cannot be accidental or done while being unconscious, or made while under duress.
Mens rea is the required mental element of the crime — meaning the “guilty mind”. This pertains to what the accused was thinking with respect to the crime. The default mens rea is subjective to the accused — unless an objective standard of a “reasonable person” is indicated within the section.
That means the accused may have subjectively intended for the offence to take place, or have been reckless or wilfully blind as to whether or not the offence would occur.
Defences – these are charge specific — not every charge will have the same defences available to them.
Sentencing – in this section we will touch on the sentences available for each offence, but please visit our page for more information on sentencing in criminal law.
Quick Point: General vs Specific Intent in Criminal Law
In Canada, criminal law recognizes a distinction between offences of specific and general intent.
General intent requires intent as it “relates solely to the performance of the act in question”.
Specific intent involves the actus reus (the guilty act) “coupled with an intent or purpose going beyond the mere performance of the questioned act”.1
An example of this distinction can be seen in the charge of murder versus manslaughter. In the case of murder, there must be intention to cause death, whereas manslaughter does not require the intention.
This will become important further down!
Sexual Assault
Sexual Assault, unlike most offences in the Criminal Code, is not explicitly defined. Instead, you can look at the offence as a form of an assault (which is defined), predictably with a sexual element to the act.
First, let’s look at the definition of an assault, found under section 265 of the Criminal Code:
265 (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
In sum, an assault is applying force to another person, attempting or threatening to apply force to another, or having a weapon and confronting another (notice the last two forms of assault don’t even require contact: attempting or approaching someone aggressively with a weapon can make out an assault).
So, from there, we add sexual contact or behaviour. Therefore, a sexual assault is an assault, within any one of the definitions of the concept under 265(1), which is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated.
Sexual assault can be committed by and against a person of any gender and can occur outside of a relationship or between spouses.
Actus Reus (Guilty Act)
This offence requires a specific transaction that a person committed
- An identified assault
- A sexual nature such that the sexual integrity of the victim was violated
The next thing to understand about the offence of sexual assault is that it doesn’t require the person carrying out the assault to be touching the complainant for a sexual purpose — that is because sexual assault is an offence of “general intent”. Said another way, the Crown does not need to prove the accused intended the assault to be for a sexual purpose. All that needs to be shown is that the accused’s act violated the sexual integrity of the complainant. Let’s look at an interesting example:
The majority of sexual assault charges in Canada rely on section 265(1)(a) — so the evidence must reflect that:
- Touching that constitutes an assault;
- The touching occurred in sexual circumstances, and
- There was a lack of consent to the touch from the victim
Just like an assault, the touch may be direct or indirect — for example, using an object to touch.
Typically, describing the sexual element of the assault has been more difficult for the courts. The assault must have sexual circumstances, which is defined as an objective and contemporary standard.
Therefore, the court will take into account the entire circumstances of the offence, such as any words or gestures used, the intent of the accused, nature of the contact, etc.
Interestingly, the objective test looks to whether, viewed in light of all the circumstances, the sexual context of the assault would be visible to a “reasonable observer”.
The court must then conclude beyond a reasonable doubt that these elements occurred in order to render a conviction.
Sexual assaults can occur in a wide variety of circumstances. For example, if the complainant is partially naked when an assault occurs, or where there is a non-sexual assault during sex.
Finally, consent must be absent to establish the actus reus of the crime. Absence of consent is assessed by the court subjectively and determined by reference to the complainant’s state of mind toward the touching at the time it occurred.
Please remember, sexual assault does not require physical touching – it can include a threat or attempt.
Attempts are set out in Section 24(1) of the Criminal Code, which reads:
Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
Mens rea (Guilty mind)
The Crown must prove two elements to show the requisite mens rea of the accused:
- That the accused intentionally acted (e.g., touched); and
- That the accused had to be aware of, or willfully blind or reckless to, the victim’s lack of consent to the sexual act.
As we mentioned earlier, sexual assault is an offence of general intent. That means there is no requirement that the intent to touch include any element of sexual intent or motive.2
Evidence of an absence of a sexually motivated purpose will not always stop a court from deciding that a sexual assault occurred. The act must be intentional, however, regardless of motive; an accidental touch will not be enough to prove a sexual assault occurred.
Recently in criminal law, there has been a noticeable movement towards clear expressions of consent — the accused can be convicted of sexual assault, not only if they ignore a “no”, but also if they are aware of an absence of a clear yes to the act. This is a complicated area of the law and results in lengthy hearings.
Section 273.2 of the Criminal Code states:
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where
- (a) the accused’s belief arose from
- (i) the accused’s self-induced intoxication,
- (ii) the accused’s recklessness or wilful blindness, or
- (iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained;
- (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or
- (c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.
Therefore, the Criminal Code makes it clear that there are instances where mistaken belief of consent cannot be a defence.
Defences
The Criminal Code does not allow the defence of self-induced intoxication for sexual assault. Except for the circumstances outlined in section 273.2 (above), consent and mistaken belief in consent are available defences to sexual assault.
Where the evidence indicates that the complainant did not consent to the sexual activity that took place, the common law recognizes a defence of mistake of fact. This means that there is a defence for an accused who honestly but mistakenly believed that they had consent to touch the complainant in a sexual manner.
Usually, but not always, the accused will have to testify in court to raise this defence. If you have been charged with a sexual offence or sexual assault, please contact our office to speak with a legal professional to obtain advice on raising defences at your trial.
Sentencing
Sexual assault in section 271 is a hybrid offence. Meaning the Crown can elect by indictment or by summary conviction.
Where the Crown proceeds by indictment, there is no mandatory minimum sentence, unless the victim is under 16 years of age — then the minimum sentence is one year in jail and a maximum of 14 years in a federal penitentiary. Otherwise, the maximum sentence is 10 years in all other cases. Given the mandatory minimum, a conditional sentence order (a term of custody served in the community) is not an available sentence.
When the charge proceeds by summary conviction, the maximum term for imprisonment is 18 months, unless the victim is under 16 years of age, then the mandatory minimum is a term of six months of imprisonment and a maximum term of two years less a day. A conditional sentence is available unless the victim is under 16 years of age.
Interestingly, the mandatory minimum sentence in summary convection matters changed in 2018, raising the maximum penalty for summary conviction offences from 6 months to 2 years less a day of imprisonment; and extended all summary conviction offence limitation period to 12 months from 6. A limitation period is the time frame within which a charge, to be tried by summary conviction procedure, must be laid, as calculated starting from the date of the alleged offence.
Note — in a probation order, a Judge can set out terms to restrict the movements of the accused around children under 16 years of age.
Sexual Assault with a Weapon, Threats to a Third Party, or Causing Bodily Harm
Sexual assault becomes more serious, and therefore comes with increased penalties, when combined with one of the following elements, and is set out in a separate section:
Sexual assault with a weapon, threats to a third party or causing bodily harm
272(1) Every person commits an offence who, in committing a sexual assault,
(a) carries, uses or threatens to use a weapon or an imitation of a weapon;
(b) threatens to cause bodily harm to a person other than the complainant;
(c) causes bodily harm to the complainant; or
(d) is a party to the offence with any other person.
Actus Reus (Guilty Act)
This section relies on a finding of sexual assault with the additional elements a weapon, threats, or acts of bodily harm, or from being a party to the offence.
Let’s break this down by the sections as listed under 272(1).
(a) Every person commits an offence who, in committing a sexual assault, carries, uses or threatens to use a weapon or an imitation of a weapon:
“Weapon” for the purposes of section 272(1)(a) is defined in section 2 of the Criminal Code as follows:
Definitions
- In this Act,
“weapon” means any thing used, designed to be used or intended for use
(a) in causing death or injury to any person, or
(b) for the purpose of threatening or intimidating any person.
This is a broad definition, and, as such, can include a variety of objects, depending on the purpose in which it is being used for.
Where a specific weapon is specified in the indictment (the charge form listing the offence and date of the offence), it must be proved beyond a reasonable doubt.
For example, that means that if the wording of the charge on the indictment is “an assault with a weapon, to wit, a baseball bat”, if there is a question whether a baseball bat was used, the offence would be brought into question.
It is not uncommon for a person to be charged under s. 271, sexual assault, and this section, even if the alleged assaults are from the same incident. That could be for a variety of reasons — for example, in the case the sexual assault is made out but there is a question about whether a weapon was used, then the Crown will proceed on both counts.
However, if both counts stem from the same offence, then the principle commonly known as Keinapple applies, which states that a person cannot be convicted of two (or more) offences that are a result of the same act. That means that only one conviction can be entered if a person is found guilty of multiple counts from the same act.
(b) Every person commits an offence who, in committing a sexual assault, threatens to cause bodily harm to a person other than the complainant; or
(c) causes bodily harm to the complainant
“Bodily harm” in section 272(1)(b) and (c) is defined in section 2 of the Criminal Code:
“bodily harm” means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.
Bodily harm can include either physical or psychological harm.
It remains unclear whether allowing oneself to be choked into unconsciousness (erotic asphyxiation) constitutes bodily harm for which there can be no consent.
(d) Every person commits an offence who, in committing a sexual assault, is a party to the offence with any other person.
“Party to the offence” is defined in section 21 of the Code:
Parties to offence
21(1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
Importantly, conviction under this section requires more than mere presence at the scene of the crime. There needs to be some positive encouragement or facilitation.
Mens Rea (Guilty Mind)
This is a crime of general intent. Depending on what subsection is being alleged, the Crown needs to show an intention or threat to use a weapon, threaten or cause bodily harm, or encourage the principal to the offence.
With respect to bodily harm, objective risk of bodily harm is required. That means that in order to determine whether bodily harm was intended, the court assesses the “objective foreseeability” of the risk of bodily harm in general — not just the specific type of harm that actually occurred. Therefore, if a person could objectively predict that there was a risk of bodily harm due to the accused’s actions, the mens rea can be made out.
Remember — there is still the requirement that the accused was aware of the complainant’s lack of consent.
Defences
In the case of bodily harm, the defence of consent does not exist if bodily harm was caused, unless the accused can show the harm was not intended and was inadvertent. Otherwise, the defences set out in “Sexual Assaults” apply to this charge.
Sentencing
Any conviction under this section is an indictable offence.
If a firearm is used, the maximum sentence is a term of 14 years and carries a minimum of five years for a first offence. If it is not the accused’s first offence, then there is a mandatory minimum sentence of seven years. A previous conviction involving the use of a firearm can be considered a prior offence so long as the conviction was not more than ten years ago.
Where the complainant is under 16 years at the time of the offence, the accused is liable to life in prison and a minimum punishment of 5 years in prison;
In any other case, a maximum prison sentence of 14 years with no minimum sentence.
Aggravated Sexual Assault
This section is typically saved for the most serious cases of sexual assault. It is defined in section 273(1) of the Criminal Code and based on section 265(3) as follows:
Aggravated sexual assault
273(1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.
Actus Reus (Guilty Act)
Aggravated sexual assault is based on all the elements of sexual assault plus the requirement that the accused wounds, maims, disfigures or endangers the life of the complainant — there must be a serious risk of bodily harm.
“Wound” involves a cut or breaking of the skin that bleeds that constitutes serious bodily harm.
“Maim” means to injure a person to the extent that the person is less capable to fight and defend himself or herself.
“Disfigure” is a significant marring of the person’s appearance that lasts for some duration.
“Endangerment to life” does not necessarily involve bodily harm, but that the complainant’s life was endangered as a result of the assault.
Quick note – non-disclosure of HIV-positive status can vitiate the necessary element of consent from the basic sexual assault actus reus. This is because not disclosing a sexually-transmitted disease can be deemed to endanger the life of the complainant.
Factors that courts have used to determine the level of risk include
- the viral load of the accused,
- whether or not a condom was used,
- whether or not the complainant would have consented if they had this knowledge,
- and the likelihood of transmission.
Mens Rea (Guilty Mind)
Again — the fundamental crime of sexual assault remains a crime of general intent. Just as for sexual assault, the mens rea for aggravated sexual assault is the subjective intent to perform the act and being reckless or wilfully blind to the victim’s lack of consent.
Once that is made out, the Crown must also prove that a reasonable person would have foreseen the risk of harm. The mental element in aggravated assault is the same as the mental element in sexual assault — intention, recklessness, or wilful blindness — coupled with objective foresight of the risk of bodily harm.
Defences
The defences are the same as those outlined above for sexual assault and sexual assault causing bodily harm.
Sentencing
Aggravated sexual assault under section 273 is an indictable offence with a maximum sentence of life in jail. The remaining sentencing provisions are identical to those in the above section, sexual assault with a weapon, threats to a third party, or causing bodily harm.
Voyeurism
The section states that it is a criminal offence to surreptitiously observe or make a visual recording of a person (including by mechanical or electronic means) in circumstances that give rise to a reasonable expectation of privacy, if
- the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;
- the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or
- the observation or recording is done for a sexual purpose.
Actus Reus
The offence of voyeurism consists of
- Secretive observation and/or recording;
- Where the observed or recorded person had a reasonable expectation of privacy; and
- There was exposure or expected exposure of private body parts, sexual activity, the observation or recording was for a sexual purpose.
Mens rea
The accused must intend that the victim not know that he or she is being observed or photographed.
Defences
A defence to this charge is if the act serves the public good.
Sentencing
Voyeurism is a hybrid offence. Where the Crown proceeds by way of indictment, the maximum sentence is 5 years imprisonment.
Where the Crown proceeds by summary conviction, the maximum sentence is six months’ imprisonment.
Publication Bans
It is common in criminal court to hear the Crown or defence request a publication ban. There are many sections in the Criminal Code that set out available bans.
Publication bans serve to prevent the publication, broadcast, or transmission of information generated from criminal court cases. They play an important role in the criminal justice system’s aim of vigilance in protecting the privacy interests of victims and to prevent the publication of untested evidence before it is presented, in order to avoid contamination of the court process by public opinion. That way, both a victim or an accused (or another involved party) can be protected from having sensitive information be made public. Publication bans can prevent a tainted jury or traumatizing family members of the involved parties.
Publication bans can be ordered under Common Law or by Statute (either the Criminal Code or the Youth Criminal Justice Act). We will discuss both, briefly.
Publication Bans at Common Law
A judge has the discretion at common law to order a publication ban where, after weighing the effects on the accused’s right to a fair trial, the right to freedom of expression, and the interests of the administration of justice, decides it is necessary in the circumstances.
The party requesting the order (either the defence or the Crown) has to establish, on a balance of probabilities, that:
- Such an order is necessary in order to prevent a serious risk to the proper administration of justice or to the fairness of the trial; and
- The favourable effects of the publication ban outweigh the negative effects on the rights of the parties and the public.
Interestingly, a judge hearing such an application has the discretion to allow the media have notice of the application so they can argue against it.
Statutory Publication Bans
The Criminal Code sets out several sections for publication bans that have application in cases related to sexual offences.
They include section 517 (evidence at bail hearings); sections 539 and 542 (evidence at preliminary hearings); section 486.4 (sexual offences); section 276.3 (evidence of a victim’s prior sexual activity); and section 278.9 (production of a victim’s or witness’s personal records).
References
1: R v Bernard, 1988 CanLII 22 (SCC), [1988] 2 SCR 833, at para 61
2: R v Chase, [1987] 2 SCR 293, 37 CCC (3d) 97.
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