Canadian Criminal Law/Offences/Sexual Assault

Sexual Assault
	s. 271 of the Crim. Code
Election / Plea
Crown Election	Hybrid
Jurisdiction	Prov. Court ; SC Judge + PI (I) ; SC Jury + PI (I) (536(2))
Summary Dispositions
Avail. Disp.	Discharge (730); Suspended Sentence (731(1)(a)); Fine (734); Fine + Probation (731(1)(b)); Jail (718.3, 787); Jail + Probation (731(1)(b)); Jail + Fine (734); Conditional Sentence (742.1)*
Maximum	18 months jail or $5,000 fine
Indictable Dispositions
Avail. Disp.	Discharge (730); Suspended Sentence (731(1)(a)); Fine (734); Fine + Probation (731(1)(b)); Jail (718.3, 787); Jail + Probation (731(1)(b)); Jail + Fine (734); Conditional Sentence (742.1);
Maximum	10 years jail
Designations
	DNA primary designated offence; SOIRA designated offence; DO/LTO primary designated offence;
References
	Offence Elements ; Sentence Principles ; Sentence Digests;

Legislation

Sexual assault
271. Everyone who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding 10 years and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of one year; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding 18 months and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of 90 days.

R.S., 1985, c. C-46, s. 271; R.S., 1985, c. 19 (3rd Supp.), s. 10; 1994, c. 44, s. 19; 2012, c. 1, s. 25.

– CCC

Proof of Offence

identity of accused
date and time of incident
jurisdiction (incl. region and province)
the accused assaulted the victim (e.g. non-consentual touching)
the sexual nature of the contact;
the absence of consent;
the age of the complainant;
the age of the accused;
the relationship between the complainant and accused;
medical evidence (if any)

Interpretation

See also Canadian Criminal Law/Offences/Sexual Offences

A sexual assault is an assault (as defined in s. 265) in which the complainant's sexual integrity in violated.^[1]

It is an assault whose essence requires touching at the least.^[2]

The accused does not need to have a sexual purpose in the assault. Disciplining or humiliating a person in a sexual manner is a sexual assault.^[3]

↑ R. v. Chase [1987] 2 SCR 293, 1987 CanLII 23
↑ R. v. Ewanchuk, 1999 CanLII 711, [1999] 1 S.C.R. 330, 169 D.L.R. (4th) 193
↑ R. v. V. (K.B.), [1993] 2 SCR 857 1993 CanLII 109
R. v. Nicolaou, 2008 BCCA 300

Intent

The mens rea of sexual assault is "intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched." ^[1]

See Canadian Criminal Law/Consent (sexual offences)

Defences

Consent or mistaken consent

Typical Motions or Orders

Witness motions

Exclusion of public from court (486)
Prohibition of self-represented accused from Cross-examining a witness under the age of 18 years (486.3)
Sexual Offence Publication Ban (486.4)
Publication Ban of in relation to victims, witnesses or justice system participants (486.5)
Witness Screen (486.2)
Testimony by Video (714.1)

History

On August 9, 2012, s. 271 was amended to add a mandatory minimum of 90 days on summary conviction and 1 year on indictable election where the complainant is under the age of 16.

↑ R v Ewanchuk, 1999 CanLII 711 at para. 42

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[1] R. v. Chase [1987] 2 SCR 293, 1987 CanLII 23

[2] R. v. Ewanchuk, 1999 CanLII 711, [1999] 1 S.C.R. 330, 169 D.L.R. (4th) 193

[3] R. v. V. (K.B.), [1993] 2 SCR 857 1993 CanLII 109
R. v. Nicolaou, 2008 BCCA 300

[4] R v Ewanchuk, 1999 CanLII 711 at para. 42