In the current version of the Canadian Criminal Code, sexual assault is defined broadly, encompassing various sexually-related cases involving direct or indirect application of force to another person against their consent. Such an approach allows for allegations of sexual assault in a wide range of instances, from non-consensual touching to forced penetration, with far-reaching consequences.
Where sexual assault cases include aggravating factors, they will typically involve mandatory minimum sentences and longer jail time.
Factors Affecting the Severity of Sexual Assault Sentences
The definition of sexual assault contains an extensive list of mitigating and aggravating factors determining the severity of the punishment. While there are only a few mitigating factors, the aggravating factors are much more numerous, resulting in harsher penalties.
Mitigating Factors in Sexual Assault
The presence of mitigating factors can lead to reducing criminal sentences, or even a release without conviction. When there are mitigating factors, the Crown will consider whether or not to proceed summarily, by indictment, or by applying alternative measures, such as conditional discharge.
In sexual assault cases, the most important mitigating factors are:
- if there is an early plea of guilty reflecting remorse,
- if the accused person is a first-time offender,
- if the accused is a minor.
On the other hand, aggravating factors increase the severity of charges and can lead to the application of minimum sentences and longer prison time.
The Criminal Code specifies multiple aggravating factors for sexual assault, including:
- when the accused has a previous criminal history,
- if the victim is a minor under 16 years of age,
- where there is bodily harm to the victim,
- when the accused chokes, suffocates, or strangles the victim,
- if the accused carries a weapon or its imitation, threatens with a weapon or imitation, or uses a weapon,
- where there is an abuse of trust, power, or authority,
- if there is penetration.
All About Minimum Sentences for Sexual Assault in Canada
A minimum sentence is the lowest penalty a judge must order after an individual has been by the Criminal Code for a serious offence. Judges have the discretion to issue sentences that are above the minimum, but they cannot go below.
Sections 271-273 of the Criminal Code set minimum sentences for sexual assault where there are certain aggravating factors:
- If the victim is under 16 years of age, the minimum sentence is six months if the case proceeds summarily and one year if the Crown chooses to prosecute by indictment.
- For aggravated sexual assault with injuries to the victim involving the use of weapons or firearms, the minimum sentence is four years, increased to seven years for more serious cases involving danger to life, second offenders, and other aggravating factors.
Discharges from Criminal Liability for Sexual Assault
If the offence does not carry a minimum punishment, Section 730 of the Criminal Code allows the judge to discharge the accused, even if they were found guilty or pleaded guilty, provided such a discharge is “in the best interest of the accused and not contrary to the public interest.” There are two types of discharge available: conditional discharge, and absolute discharge.
In the case of conditional discharge, the accused will be released on a probation order. In addition to the obligatory conditions for this type of release, such as “keeping peace and demonstrating good behaviour,” the judge may prescribe optional conditions. For example, such optional conditions could include not contacting the victim, abstaining from owning weapons, consuming drugs or alcohol, and other requirements.
After the expiry of the probationary period, conditional discharge becomes absolute. Records of conditional discharge stay on file with the RCMP database for three years.
With absolute discharge, the accused is released with no conditions. The record of discharge will be present for one year, after which it will be purged.
What is the Law of Consent in Sexual Assault?
Criminal law explicitly requires taking reasonable steps to ascertain consent at all times when engaging in any sexual activity. Meanwhile, the circumstances where no consent is obtained may result in allegations of sexual assault.
The Criminal Code includes a non-exclusive list of instances where the law considers that no consent was granted, including:
- if consent is expressed by someone else but not by 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 establishing consent at all times and immediately stopping any sexual advances should the consent be withheld 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 sentences, but also to more severe punishments. For example, where the victim of a sexual offence is below 16 years of age and the Crown proceeds by indictment, the maximum sentence can be as long as 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 serious 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 the raising of 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 sentence will depend on the presence of 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, it is not a good idea to face these charges on your own. If you are facing sexual assault charges in Toronto, get in touch with an experienced sexual assault lawyer on our team at Vilkhov Law as soon as possible for a free consultation on how we can help in your case.