Table of contents:
- Types of Sexual Assault
- Factors Affecting the Severity of Sexual Assault Sentences
- Mandatory Minimum Sentences
- Sexual Assault: Section 271 of the Criminal Code
- Sexual Assault with a Weapon, Threats to a Third Party or Causing Bodily Harm: Section 272(1) of the Criminal Code
- Aggravated Sexual Assault: Section 273(1) of the Criminal Code
- Aggravated Sexual Assault with Restricted or Prohibited Firearm
- Aggravated Sexual Assault with Possession of Other Firearm
- Complainant Younger than 16 Years Old
- National Sex Offender Registry
- Conditional Discharge
- Absolute Discharge
- What is the Law of Consent in Sexual Assault?
- When is Sentencing for Sexual Assault More Severe?
Canada’s Criminal Code broadly defines sexual assault in order to encompass the wide range of sexually related situations that involve the direct or indirect application of force to another person without their consent. This allows sexual assault allegations to cover a broad spectrum of incidents, from non-consensual touching to forced penetration, with far-reaching consequences.
Additionally, when sexual assault cases involve aggravating factors, convictions usually come with a mandatory minimum sentence and longer prison terms.
“In sexual assault cases, the stakes are incredibly high — not only due to the severe penalties involved but also because of the profound impact on the accused’s personal and professional life. Ensuring that every individual’s rights are protected throughout the legal process.”
Types of Sexual Assault
Canada’s Criminal Code does not explicitly delineate basic sexual assault – rather, Section 265’s description of assault specifically states that the Code’s application of assault “applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.” Thus, any form of assault listed in the Code is considered a sexual assault if conducted with sexual intent. The sexual assault types include:
Level 1: Basic Sexual Assault (Section 271)
Definition: This involves the non-consensual application of force of a sexual nature. It is the most common form of sexual assault and can include actions such as unwanted touching or groping.
- Penalties: Indictable Offence: If the complainant is under 16, the maximum penalty is 14 years imprisonment, with a mandatory minimum sentence of 1 year.
- Summary Conviction: If the complainant is under 16, the maximum penalty is 2 years less a day, with a mandatory minimum sentence of 6 months.
Note: There are no mandatory minimum sentences if the complainant is 16 years or older.
Level 2: Sexual Assault with a Weapon, Threats to a Third Party, or Causing Bodily Harm (Section 272)
Definition: This level involves sexual assault that includes the use of a weapon, threats to cause bodily harm to someone other than the victim, or causing bodily harm to the victim.
Penalties:
- Indictable Offence: The maximum penalty is 14 years imprisonment.
- Mandatory Minimum Sentences:
- Use of a Restricted or Prohibited Firearm: First offence: 5 years; subsequent offences: 7 years.
- Use of Any Firearm (Not Restricted or Prohibited): 4 years.
- If the Complainant is under 16 Years Old: 5 years.
Note: These mandatory minimum sentences aim to deter the use of weapons and protect vulnerable individuals.
Level 3: Aggravated Sexual Assault (Section 273)
Definition: This is the most severe form of sexual assault, involving actions that wound, maim, disfigure, or endanger the life of the complainant.
Penalties:
- Indictable Offence: The maximum penalty is life imprisonment.
- Mandatory Minimum Sentences:
- Use of a Restricted or Prohibited Firearm: First offence: 5 years; subsequent offences: 7 years.
- Use of Any Firearm (Not Restricted or Prohibited): 4 years.
- If the Complainant is under 16 Years Old: 5 years.
Note: The inclusion of mandatory minimum sentences reflects the seriousness with which the legal system treats aggravated sexual assault, particularly when firearms are involved or the victim is a minor.
Recent Legislative Updates:
Recent amendments to the Criminal Code have introduced mandatory minimum sentences for various sexual offences involving victims under the age of 16. These changes aim to enhance protection for minors and ensure more consistent sentencing.
Feel free to ask if you require further information or clarification on any of these points.
Factors Affecting the Severity of Sexual Assault Sentences
Sentencing for sexual assault in Canada depends on both codified aggravating factors and those established through case law. While the Criminal Code does not explicitly define mitigating factors, judges and Crown prosecutors have the discretion to consider them when determining the appropriate sentence.
Aggravating Factors
Aggravating factors can increase the severity of charges and sentencing. In some cases, they may lead to mandatory minimum penalties or extended prison terms. Codified aggravating factors under the Criminal Code include:
- The victim is under the age of 16.
- Use of a restricted or prohibited firearm.
- Use of any firearm in connection with a criminal organization.
- A prior conviction for a sexual offence.
- The commission of the offence in violation of specific firearm laws.
- Repeat offences involving firearm use in levels 2 or 3 sexual assault.
Additional aggravating factors established by Canadian case law include:
- Significant physical or psychological harm to the victim.
- Use of excessive violence or force.
- Abuse of trust, authority, or power.
- Sexual penetration during the assault.
- The vulnerability of the victim (due to age, disability, or other factors).
- Forcible confinement or extended duration of the assault.
- Predatory or calculated behaviour by the offender.
- Lack of remorse or a hostile attitude toward the victim or the offence.
Mitigating Factors
Mitigating factors are not listed in the Criminal Code but are considered during sentencing and may reduce the severity of penalties. In lower-level sexual assault cases, they may lead to outcomes such as reduced charges, diversion programs, conditional or absolute discharges, or non-custodial sentences. Common mitigating factors include:
- An early guilty plea showing remorse and accountability.
- No prior criminal record (first-time offender).
- The accused is a youth or minor at the time of the offence.
- Evidence of rehabilitation or willingness to participate in treatment or counselling.
- Positive contributions to the community or support from family and employers.
Repeat Offences
Repeat offences are typically treated more harshly. The Criminal Code mandates a minimum seven-year sentence for a second conviction involving the use of a restricted or prohibited firearm in level 2 or 3 sexual assault. Even a first offence involving a firearm may result in a mandatory minimum sentence of four to five years, depending on the weapon and the circumstances.
Mandatory Minimum Sentences
Canadian law mandates minimum prison sentences in order to account for many of the codified aggravating factors. Some aggravating factors don’t carry a mandatory minimum on conviction, and most types of sexual assault have various set maximum sentences.
Aggravated sexual assault and sexual assault causing bodily harm to a victim under age 16 carries a maximum life imprisonment sentence. All the minimum and maximum penalties are included in the below table:
| Offence | Criminal Code Section | Minimum Sentence | Maximum Sentence |
| Sexual assault by indictment if the victim is under 16. | S. 271(a) | One year | 14 years |
| Sexual assault by summary conviction if the victim is under 16. | S. 271(b) | Six months | Two years |
| Sexual assault by indictment if the victim is 16 or older. | S. 271(a) | None | 10 years |
| Sexual assault by summary conviction if the victim is 16 or older. | S. 271(b) | None | 18 months |
| Sexual assault causing bodily harm without a firearm | S. 272(1) | None | 14 years |
| Sexual assault with a restricted or prohibited firearm. | S. 272(2) | First offence: Five years Subsequent offence: Seven years | 14 years |
| Sexual assault causing bodily harm with possession of other firearm. | S. 272(2)(a.1) | Four years | 14 years |
| Sexual assault causing bodily harm if the victim is under age 16. | S. 272(2)(a.2) | Five years | Imprisonment for life |
| Aggravated sexual assault without a firearm | S. 273(1) | None | Imprisonment for life |
| Aggravated sexual assault with a firearm | S. 273(2)(a) | First offence: five years Subsequent offence: Seven Years | Imprisonment for life |
| Aggravated sexual assault with possession of another firearm. | S. 273(2)(a.1) | Four years | Imprisonment for life |
Sexual Assault: Section 271 of the Criminal Code
Sexual assault is defined under Section 265 of the Criminal Code as an assault that is carried out with a sexual purpose. Section 271 outlines the penalties for what is considered Level 1 Sexual Assault — the least severe of the three levels of sexual assault in Canada, but still a serious criminal offence.
If the Complainant is Under 16 Years Old
When the victim is under 16 — the general age of consent in Canada — the Criminal Code imposes mandatory minimum sentences for all convictions under Section 271.
1. Indictable Offence
- Minimum Sentence: 1 year of imprisonment
- Maximum Sentence: 14 years of imprisonment
2. Summary Conviction
- Minimum Sentence: 6 months of imprisonment
- Maximum Sentence: 2 years less a day
The Crown may choose to proceed by indictment or by summary conviction, depending on the nature of the offence and other factors. Still, mandatory minimums apply regardless of the procedure when the complainant is under 16.
If the Complainant is 16 Years of Age or Older
In cases where the complainant is 16 or older, there are no mandatory minimum sentences under Section 271. The Crown’s choice of procedure again affects the potential maximum sentence.
1. Indictable Offence
- Minimum Sentence: None
- Maximum Sentence: 10 years of imprisonment
2. Summary Conviction
- Minimum Sentence: None
- Maximum Sentence: 18 months of imprisonment
While there is no mandatory minimum in these cases, courts still consider numerous aggravating and mitigating factors at sentencing.
Age of Consent and Special Circumstances
Although the general age of consent is 16, Canadian law includes exceptions where the legal age is effectively raised to 18, such as when:
- The accused is in a position of trust or authority over the young person,
- The relationship is exploitative,
- Or the victim is dependent on the accused.
If such circumstances are present, additional charges (e.g., sexual exploitation under Section 153) may apply, and sentencing may be more severe.
Sexual Assault with a Weapon, Threats to a Third Party or Causing Bodily Harm: Section 272(1) of the Criminal Code
This second-level form of sexual assault is considered significantly more serious and is always prosecuted as an indictable offence. Penalties vary depending on aggravating factors, particularly the involvement of firearms and the age of the complainant.
1. Use of a Restricted or Prohibited Firearm
If the offence involves the use of a restricted or prohibited firearm, or any firearm used in connection with a criminal organization, the Criminal Code imposes the following mandatory penalties:
- First Offence: Minimum of 5 years imprisonment
- Subsequent Offence: Minimum of 7 years imprisonment
- Maximum Sentence: Up to 14 years
A prior conviction for certain serious offences — such as sexual assault with a weapon, murder, kidnapping, robbery, or manslaughter — can count as a previous offence and trigger the increased mandatory sentence.
2. Possession of Any Other Firearm
Where a firearm is used that is not classified as restricted or prohibited, and is not associated with a criminal organization, the penalties are:
- Minimum Sentence: 4 years imprisonment
- Maximum Sentence: Up to 14 years
3. Complainant Under the Age of 16
If the victim is under 16 years of age, any instance of firearm use in a Section 272 offence results in elevated penalties:
- Minimum Sentence: 5 years imprisonment
- Maximum Sentence: Life imprisonment
Aggravated Sexual Assault – Section 273 of the Criminal Code
Aggravated sexual assault is defined under Section 273(1) of the Criminal Code as a sexual assault that results in wounding, maiming, disfiguring, or endangering the life of the complainant. It is the most severe form of sexual assault offence in Canada and is always prosecuted as an indictable offence.
Penalties and Mandatory Minimum Sentences
The penalties for aggravated sexual assault vary based on specific aggravating factors:
1. Use of a Restricted or Prohibited Firearm or Association with a Criminal Organization
- First Offence: Minimum sentence of 5 years imprisonment.
- Subsequent Offence: Minimum sentence of 7 years imprisonment.
- Maximum Sentence: Life imprisonment.
This applies when a restricted or prohibited firearm is used during the offence, or if any firearm is used in the commission of the offence for the benefit of, at the direction of, or in association with a criminal organization.
2. Use of Any Other Firearm
- Minimum Sentence: 4 years imprisonment.
- Maximum Sentence: Life imprisonment.
This pertains to cases where a firearm, not classified as restricted or prohibited, is used to commit the offence.
3. Complainant Under the Age of 16
- Minimum Sentence: 5 years imprisonment.
- Maximum Sentence: Life imprisonment.
National Sex Offender Registry
In addition to harsh punishment, most sexual assault convictions require the offender to register as a sexual offender with the National Sex Offender Registry (NSOR). Registered sex offenders are listed on the registry for life, and must comply with NSOR reporting requirements for at least 10 years and potentially life, depending on the court’s order.
What Is the National Sex Offender Registry?
The National Sex Offender Registry is a database of known sex offenders whom police can monitor to help prevent future sexual crimes. Canadian police agencies can also use the database to investigate sexual offences and identify potential suspects.
Sex offenders register with NSOR by submitting more than 80 pieces of personal and identifying information. Offenders must check in with police annually to update their personal information, and notify police of any address changes within seven days. Noncompliance with NSOR requirements can result in punishment including up to $10,000 in fines and/or two years in prison.
Getting Taken Off the Registry
Sex offenders have the right to petition the court for early removal from the registry once they have complied with NSOR conditions for at least half of their court-ordered term (20 years for lifetime terms). The court has complete discretion to approve or deny the registry removal, and the process is complicated. A skilled sexual assault lawyer can help offenders navigate the process and improve their chances of a favourable removal.
Discharges from Criminal Liability for Sexual Assault
Section 730 of the Criminal Code allows judges to grant a discharge to sexual offenders, even if they were found or pled guilty, provided such a discharge is “in the best interest of the accused and not contrary to the public interest.” A discharge allows those convicted to avoid sentencing and a criminal record, and is often granted to lower-level, first-time sexual assault offenders. There are two types available: conditional discharge and absolute discharge, however, they cannot be granted for any offence that carries a mandatory minimum sentence.
Conditional Discharge
A conditional discharge releases the offender on a probation order. In addition to the standard conditions for this type of release, such as “keeping peace and demonstrating good behaviour,” the judge may prescribe additional conditions – for example, these conditions could include not contacting the victim, not owning weapons, avoiding drugs and alcohol, or other requirements.
After the probationary period expires, the conditional discharge becomes absolute. Records of conditional discharge stay on file with the RCMP database for three years.
Absolute Discharge
With absolute discharge, the offender is released without any conditions. The discharge record will be preserved for one year, after which the court will purge it.
What is the Law of Consent in Sexual Assault?
Canadian criminal law explicitly requires that people take reasonable steps to always ascertain consent when engaging in any sexual activity. Circumstances in which no consent was obtained can support sexual assault allegations.
The Criminal Code includes a non-exclusive list of instances where the law considers that no consent was granted, including:
- if consent was expressed by someone other than the victim.
- when the complainant is unconscious or unable to express consent for other reasons, for example, due to intoxication, while sleeping, or because of mental incapacity.
- where the complainant is introduced into sexual activity through abuse of power, authority, or trust.
- If the complainant expresses a lack of agreement to engage in or to continue the sexual activity by words or behaviour.
The law requires that consent be established at all times, and that any sexual advances should be halted if the consent is withdrawn at any moment. It is also not a defence to say that the accused believed in the presence of consent under intoxication, recklessness, or willful ignorance and, therefore, didn’t take reasonable steps to ensure that consent was granted.
When is Sentencing for Sexual Assault More Severe?
The presence of aggravating factors leads not only to the application of minimum penalties, but also to more severe punishments. For example, where the victim of a sexual offence is under age 16 and the Crown proceeds by indictment, the maximum sentence can be up to 14 years in jail. The same maximum sentence applies where there is bodily harm, threats, or actual use of a weapon.
Meanwhile, in the most severe case of sexual assault outlined by Section 273 of the Criminal Code, the maximum sentence can be even higher. Where sexual assault is committed with the use of a firearm, or if there are wounds, disfigurement, or danger to life, the accused can face life imprisonment.
The broad interpretation of laws surrounding sexual assault in Canada allows for raising criminal charges in multiple situations, from unwanted kissing to violent sexual crimes. The application of minimum sentences, availability of discharge from criminal liability, or maximum sentences will depend on mitigating and aggravating factors, whether the Crown proceeds summarily or by indictment, and the quality of your defence.
Given the gravity of being charged with sexual assault in Ontario, facing these charges on your own is not a good idea. If you are facing sexual assault charges in Toronto, contact one of our experienced sexual assault lawyers at Vilkhov Law as soon as possible for a free consultation on how we can help your case.
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