What’s the Difference Between Sexual Assault and Sexual Harassment in Canada?

Key Takeaways:

• Legal Definitions and Differences: Sexual assault in Canada involves physical contact or the threat thereof and is explicitly defined under the Criminal Code, carrying severe penalties.
• In contrast, sexual harassment, though not distinctly defined by the Code, encompasses a broader range of unwanted sexual behaviours and can lead to criminal charges under the criminal harassment section.
• Penalties and Charges: Sexual assault convictions can result in imprisonment ranging from one to life, depending on the severity, and mandatory inclusion on the federal sex offender registry.
• Sexual harassment can lead to up to 10 years of imprisonment if indicted, highlighting the serious legal consequences of such actions.
• Sexual Misconduct as an Umbrella Term: Sexual misconduct covers all forms of inappropriate, unwelcome, and illegal sexual behaviours, including assault and harassment, and is typically managed through institutional policies unless it escalates to criminal levels.

Table of contents:

1. What is the Difference Between Sexual Assault and Harassment
2. What is Sexual Harassment?
   • Other Forms of Sexual Harassment Subject to Legal Action
3. Sexual Abuse Typically Involves Children and Other Vulnerable People
4. OK, What About Sexual Misconduct?

In the wake of the “Me Too” movement, men—and sometimes women—must tread a delicate line in matters relating to sexual activities. Anyone who initiates non-consensual sexual touching, unwanted sexual attention, or even unsolicited sexual discussion is committing a potential transgression that could get them in trouble.

But what are these transgressions, and how are they characterized? Under Canadian law, what differentiates sexual abuse versus sexual assault? How about sexual harassment versus assault? Or what of sexual misconduct versus sexual assault?

Sexual assault is obviously illegal, but is sexual harassment a crime, and what constitutes harassment in Canada? For that matter, can the police charge someone with verbal sexual assault if they proclaim their desire to make love to someone who has no interest?

Great questions, and the experienced sexual assault lawyer in Toronto’s Vilkhov Law office has the answers. Read on to learn what differentiates sexual assault vs harassment and about other legal nuances involving sexual misconduct.

What is the Difference Between Sexual Assault and Harassment

From a legal standpoint, the key difference between sexual assault and sexual harassment is that the former usually involves physical contact or the threat thereof. At the same time, the latter covers repeated actions that make someone fearful. While the Criminal Code defines sexual assault, it does not have a sexual harassment definition. However, many incidents of harassment charged by the police involve actions motivated by sexual desire and/or intent.

The Criminal Code’s definition of assault applies the term to include sexual assault when committed with sexual intent. Section 265 (1) of the Code defines assault as:

• The non-consensual application of intentional force to another person is conveyed directly or indirectly.
• An attempt or threat, by act or gesture, to apply force to another person, provided there is reasonable belief by the victim that the offender can carry out the attempt.
• Openly wearing or carrying a weapon or imitation of one while accosting or impeding another person.

The higher-tier Section 267 assault with a weapon or causing bodily harm and Section 268 aggravated assault can also be charged as sexual offences if warranted. All forms of sexual assault carry harsher penalties than the respective standard assaults, as proscribed by Sections 271-273 of the Code. The penalties for the lowest tier—non-consensual touching to rape—Section 265 sexual assault range from one to 10 years imprisonment as an indictable offence. The penalties range from six to 18 months in jail if charged summarily. A conviction of higher-tier sexual assaults can lead to sentences ranging from five years to life in prison. Anyone convicted of any tier of sexual assault faces mandatory inclusion on the federal sex offender registry.

What is Sexual Harassment?

As noted, sexual harassment is not distinctly defined by the Code. Rather, Section 264 defines “criminal harassment” as knowingly or recklessly harassing another person to the extent of making them fear for their or other’s safety. Prohibited conduct that is considered such harassment under the law includes:

• “repeatedly following from place to place the other person or anyone known to them;
• repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
• besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
• engaging in threatening conduct directed at the other person or any member of their family.”

The penalties for criminal harassment — of a sexual nature or not — are up to 10 years imprisonment if charged as an indictable offence or a maximum of two years if charged summarily.

Other Forms of Sexual Harassment Subject to Legal Action

Sexual harassment describes a much wider range of unsolicited and unwanted sexual behaviours than indicated by the Criminal Code’s harassment definition. Engaging in sexual harassment can lead to legal action under the Human Rights Act, Canadian Labour Code, and related provincial laws. The laws encourage companies, schools, institutions, and other organizations to prevent sexual harassment and internally penalize those who engage in it. Failing to act can lead to government intervention and punishment. The laws also have provisions allowing victims to pursue civil damages against the harasser and entities that fail to address it. A few examples of sexual harassment actions subject to purview under these laws include:

• Using sex-specific derogatory language.
• Gender-related verbal abuse, threats, or taunting.
• Leering or ogling.
• Offering workplace advancement in exchange for sex.
• Unwanted propositions for physical intimacy.
• Circulating pornography or sexual imagery in person or online.
• Vulgar humour or language related to gender.
• Bragging about sexual prowess.
• Unwanted questions or conversations about sexual activities.

Sexual Abuse Typically Involves Children and Other Vulnerable People

Sexual abuse typically refers to sexual assault and related sexual activities that involve children or other vulnerable people who may not be able to consent. In many cases, the sexual abuser is in a position of power or trust over the victim. Examples of sexual abuse covered by the Criminal Code include:

• Sexual interference (Section 151)
• Invitation to Sexual Touching (Section 152)
• Sexual Exploitation (Section 153 (1))
• Sexual exploitation of a person with a disability (Section 153.1 (1)

OK, What About Sexual Misconduct?

Sexual assault, sexual abuse, and sexual harassment are all forms of sexual misconduct. As a broad umbrella term, sexual misconduct meaning describes the full gamut of inappropriate, unwelcome, and illegal sexual behaviours. It is not a specific offence under the Criminal Code, Human Rights Act, or Canadian Labor Code. Instead, the term is often used in institutional policies governing workplaces, universities, and professional associations. Unless the misconduct rises to the level of sex harassment or assault, it is usually addressed by internal disciplinary actions.

If you’re facing criminal assault or criminal harassment charges in Ontario, you need to hire the best criminal defence lawyer possible. With a stellar record for securing favourable outcomes from clients in the GTA, Scarborough, Richmond Hill, Brampton, Mississauga, and Barrie criminal lawyers at Vilkhov Law stand ready to serve you. For top-notch criminal defence, contact us for a free, confidential consultation.