Where a complainant is sexually assaulted, but there is no bodily injury or weapon involved, the prosecution will usually seek penalties provided by Section 271 of the Canadian Criminal Code. This Section defines sentences for non-aggravated sexual assault for both summary and indictable convictions.
While Section 271 is the first to mention sexual assault in the Criminal Code, it does not describe the elements of the offence or provide its definition. Below, we discuss in more detail what is considered sexual assault, what is needed to convict someone under these charges, and what are the penalties and other consequences of being found guilty of common sexual assault in Canada.
What is Considered Sexual Assault?
In Canada, the Criminal Code does not explicitly define the offence of sexual assault. Instead, the term sexual assault is based on the definition of general assault in Section 265 as a threat or actual application of force on another person without their consent, which is committed in circumstances of a sexual nature.
Due to such broad interpretation, sexual assault can include a wide range of instances, from unwanted touching and kissing to rape and other violent sexual crimes. The criminal law further classifies sexual assault by three different levels:
Level 1 sexual assault
(Section 271 of the Criminal Code), where the accused commits an assault of a sexual nature which does not result in physical injuries,
Level 2 sexual assault
(Section 272) involving bodily harm, using a weapon or threats to a third person,
Level 3 sexual assault
(Section 273) covers aggravated cases involving wounding, maiming, disfigurement or danger to the life of the complainant.
What is Needed to Convict in Sexual Assault Cases?
To convict someone of common sexual assault, referred to in Section 271, the Crown has to prove beyond reasonable doubt the following factors:
- identity of the accused as a perpetrator,
- presence of intent by the accused to apply force to the complainant,
- that the assault was sexual in nature,
- absence of consent by the complainant,
- that the accused should know or could reasonably know that there was no consent.
In identifying if the assault was of a sexual nature, the prosecution will analyze the circumstances of the assault, what was said and done during the act, parts of the body used by the accused to assault the complainant, and parts of the complainant’s body that was assaulted.
Meanwhile, the absence of consent is crucial for convicting someone of sexual assault, because if there is consent, there is no offence. On the other hand, no consent is present when the complainant:
- is under 16 years of age, and no close-in-age exceptions apply as provided by Section 150,
- did not express direct consent,
- expressed a lack of agreement to engage in sexual activity,
- decided to withdraw from it at any moment,
- was induced by the accused who abused the position of trust, power or authority.
Penalties for Sexual Assault under Section 271
Section 271 sets clear consequences for someone convicted of Level 1 sexual assault. Thus, if the Crown proceeds summarily, the accused can face:
- up to 18 months in prison if the complainant is above 16 years of age,
- from six months up to two years less a day if the complainant is under 16 years old.
Meanwhile, if the prosecution chooses to escalate the case to an indictable offence, the complainant faces:
- up to 10 years if the complainant is at least 16 years of age,
- up to 14 years in prison where the complainant is below 16 years of age.
Collateral Criminal Consequences of Conviction under Section 271
Being found guilty of sexual assault under Section 271 does not end with imprisonment, and can include a wide range of other criminal consequences set by the Criminal Code and other regulations. These include criminal record, registration in the Sex Offender Registry, and/or prohibitions under Section 161 Order for sexual assault against persons under the age of consent.
According to the Sex Offender Information Registration Act (SOIRA), those found guilty of sexual offences under Section 271 have to submit their data to the Sex Offender Registry. Upon registration, sex offenders have to provide registration centres with their personal details, addresses, information about their place of employment, telephone numbers, license plates, and all of their driver’s licenses and passports.
Other requirements for sex offenders presumed by SOIRA include notifying the police in advance about leaving the primary place of residence for more than several days (it should be noted that these and other provisions of the SOIRA and the Criminal Code related to the registration of sex offenders are currently under review by the Parliament and may be amended as foreseen in Bill S-12.)
Section 161 Order
When someone is convicted of sexual assault under Section 271 for an offence involving individuals under the age of consent, the judge may make an order under Section 161 of the Criminal Code to prohibit the offender from behaviours that can bring them into contact with such individuals.
Such orders can include:
- restrictions to attend places where persons under the age of consent are present or can be expected to be present, for example, school grounds or public parks,
- prohibition on working or volunteering in a capacity involving the position of trust or authority towards persons under the age of consent,
- prohibition on unsupervised contact with persons under the age of consent,
- restriction on the use of the Internet or other networks according to conditions specified in the order.
Contact Vilkhov Law Today
The penalties for sexual assault presumed by Section 271 of the Criminal Code can have far-reaching consequences on anyone’s life. Depending on whether or not the Crown proceeds summarily or by indictment, the criminal penalty may also vary from several months to 14 years in prison.
Taking into account the severity of penalties under Section 271, combined with collateral outcomes of criminal conviction for sexual assault, it is essential to adopt a robust defence strategy from the outset of your case.
If you are facing sexual assault charges in Toronto or the Greater Toronto Area, please don’t hesitate to contact our sexual defence lawyers from Vilkhov Law as soon as possible for a free, confidential consultation on how we can help in your case.