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.
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
Police can charge a person with common or simple assault for three different actions:
- The non-consensual application of intentional force to another person than can be conveyed directly or indirectly.
- An attempt or threat, by act or gesture, to apply force to another person, provided there is belief on reasonable grounds that the offender has the ability to effect their purpose.
- Openly wearing or carrying a weapon or imitation of one while accosting or impeding another person.
As noted, if any of these assault types are sexual in nature, the offence will be charged as a sexual assault.
Level 2: Sexual Assault with a Weapon, Threats to a Third Party or Causing Bodily Harm
This more severe type of sexual assault is distinctly codified by Section 272 (1) of the Code. This type applies to Section 265-based sexual assaults that include any of these actions:
- The carrying, use, or threat to use a weapon or imitation of one.
- Threats to cause bodily harm to a person other than the victim.
- Physical harm to the victim.
- Choking, suffocating, or strangling of the victim.
- Is a party to this offence with any other person (i.e., accomplice).
Level 3: Aggravated Sexual Assault
Section 273 (1) succinctly describes this most severe form of sexual assault as one that wounds, maims, disfigures, or endangers the victim’s life.
Factors Affecting the Severity of Sexual Assault Sentences
The Code’s definition of sexual assault types includes various aggravating factors that help judges determine the severity of punishment. While the Code does not contain any mitigating factors, Crown prosecutors and judges have the discretion to consider them during the disposition of the case.
Aggravating Factors
Aggravating factors increase the severity of charges and can lead to the application of minimum sentences and longer prison terms. Codified sexual assault aggravating factors include:
- Victims under age 16.
- Use of a restricted or prohibited firearm.
- Use of any firearm in association with a criminal organization.
- The commission of prior sexual offences.
- The commission of specific firearms offences.
- Repeat offences for higher-level sexual assaults that involve firearm use.
When sentencing, judges have the discretion to consider other factors that might call for harsher punishment. Non-codified aggravating factors, as established by court precedence, include:
- Extent of bodily harm.
- Degree of violence or force used.
- An abuse of trust, power, or authority.
- Penetration during the assault.
- Impact on the victim.
- Vulnerability of the victim.
- Forcible confinement.
- Predatory sexual behaviour.
- Attitude of the offender.
Potential Mitigating Factors in Sexual Assault
The presence of mitigating factors may help reduce the severity of sentencing and, for low-level basic sexual assault, may help influence the Crown to reduce charges, withdraw charges, accept a discharge, or produce another favourable result, such as pre-trial diversion. criminal sentences, or even a release without conviction. In sexual assault cases, the most important mitigating factors are:
- An early plea of guilt that reflects remorse.
- That the defendant is a first-time offender
- The accused is a minor.
Repeat Offence
Being a repeat offender is typically an aggravating factor for any offence. However, the Criminal Code only mandates a minimum and more severe sentence for repeat higher-level sexual assaults involving firearm use. With level two sexual assault involving the use of a restricted or prohibited firearm, a conviction carries a mandatory minimum seven-year prison sentence for a second offence. The same applies to level three sexual assaults that involve any gun.
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
As noted, section 265 of the Criminal Code defines basic assault as a sexual assault if there is sexual intent in the assault. Section 271 lays out the penalties for a conviction of basic sexual assault charges.
Complainant Younger than 16 Years Old
If the victim is under 16, Canadian law imposes mandatory minimum sentences for all sexual assault types.
Sexual Assault by Indictment
When the Crown lays sexual assault charges as an indictable offence and the victim is under age 16, courts must impose a mandatory minimum one-year prison term, and have the discretion to pass down a maximum 14-year sentence.
Sexual Assault by Summary Conviction
As a summary conviction offence, the mandatory sentence imposed by the court is six months in jail, with a maximum of two years in prison minus a day.
Complainant Older than 16 Years Old
If the victim is 16 years old — the age of consent in Canada — or older, basic, level one sexual assault carries no mandatory minimum.
By Indictment
While there is no mandatory minimum, judges have the discretion to sentence offenders charged through indictment to a maximum sentence of 10 years imprisonment.
Summary Conviction
Sexual assault offenders face a maximum 18-month jail term if convicted of a summary conviction offence.
Sexual Assault with a Weapon, Threats to a Third Party or Causing Bodily Harm: Section 272(1) of the Criminal Code
As a much more serious offence, this second-level form of sexual assault is only charged as an indictable offence, and carries varying penalties depending on aggravating factors.
Sexual Assault Under Section 272 (1) With a Restricted or Prohibited Firearm
Canadian law takes a severe response to the use of restricted or prohibited firearms and the use of any firearm in association with a criminal organization. Doing so in the commission of a level two sexual assault carries a mandatory minimum five-year prison sentence as a first offence. The maximum punishment courts can hand down is 14 years imprisonment.
Sexual Assault Under Section 272 (1) With a Restricted or Prohibited Firearm (Repeat Offence)
When a restricted or prohibited firearm-related sexual assault under Section 272 (1) is committed as a second or subsequent offence, the minimum sentence upon conviction is seven years imprisonment. Numerous gun-related offences and significant crimes such as murder, kidnapping, robbery, and manslaughter can constitute as an earlier offence that triggers the mandatory sentence.
Sexual Assault Under Section 272 (1) with Possession of Other Firearm
While not as aggravating as committing level two sexual assault with a restricted or prohibited firearm, other cases of firearm use with a Section 272 (1) offence carry a mandatory minimum four-year prison sentence. The maximum penalty is 14 years.
Complainant Younger than 16 Years Old
If the victim is under 16, any use of a firearm with a level two sexual assault carries a maximum sentence of life in prison and mandates a minimum of five years.
Aggravated Sexual Assault: Section 273(1) of the Criminal Code
Aggravated sexual assault, defined as wounding, maiming, disfiguring, or endangering the victim’s life, carries the harshest penalties and mandatory minimum prison sentences based on additional aggravating circumstances of the crime. The maximum penalty for all aggravated sexual assault types is imprisonment for life.
Aggravated Sexual Assault with Restricted or Prohibited Firearm
As with Section 272 (1), committing an aggravated sexual assault with a restricted or prohibited firearm, or any firearm associated with a criminal organization, carries a minimum sentence for a first offence of five years imprisonment. The mandatory minimum is seven years if charged as a subsequent offence to significant crimes and severe gun crimes.
Aggravated Sexual Assault with Possession of Other Firearm
In cases where otherwise legal firearms are used to commission an aggravated sexual assault, the minimum sentence is four years.
Complainant Younger than 16 Years Old
If the aggravated assault is committed against a person under 16, the mandatory minimum sentence is four years in prison.
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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