Aggravated Sexual Assault (Offence)
|Aggravated Sexual Assault|
|s. 273 of the Crim. Code|
|Election / Plea|
Sup. Court w/ Jury (*)
|Types of Release||Judicial Release Only|
|Minimum||4, 5, or 7 years incarceration|
- 1 Overview
- 2 Offence Wording
- 3 Proof of the Offence
- 4 Interpretation of the Offence
- 5 Participation of Third Parties
- 6 Sentencing Principles and Ranges
- 7 Ancillary Sentencing Orders
- 8 History
- 9 See Also
Offences relating to aggravated sexual assault are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".
|Crown Election|| Defence Election|
|s. 273 [aggravated sex assault]||Indictable Offence(s)||N/A||Yes|
When charged under s. 273, the accused cannot be released by police under s. 497 or 498 and so must be held by police when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by an order of a judge or justice under s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the YCJA and can be given an attendance notice without arrest under s. 496 or a summons and if arrested, can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The youth can also be released by a justice under s. 515.
Under s. 515(6)(a)(vii), offences charged under s. 273 have a reverse onus on bail where it has "been committed with a firearm".
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
Section s. 273 offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).
Offences under s. 273 are designated offences eligible for wiretap under s. 183.
Section s. 273 offences are "primary designated offences" under s. 752 for the purpose of a Dangerous Offender Order. The offender will be deemed a "substantial risk" for the purpose of a Long-Term Offender Order under s. 753.1.
Offences under s. 273 are designated "serious personal injury" offences as it is an enumerated offence under under s. 752(b).
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Aggravated sexual assault
273. (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.
Aggravated sexual assault
(2) Every person who commits an aggravated sexual assault is guilty of an indictable offence and liable
- (a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
- (i) in the case of a first offence, five years, and
- (ii) in the case of a second or subsequent offence, seven years;
- (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
- (a.2) if the complainant is under the age of 16 years, to imprisonment for life and to a minimum punishment of imprisonment for a term of five years; and
- (b) in any other case, to imprisonment for life.
R.S., 1985, c. C-46, s. 273; 1995, c. 39, s. 146; 2008, c. 6, s. 29; 2009, c. 22, s. 11; 2012, c. 1, s. 27.
Proof of the Offence
Proving aggravated sexual assault under s. 273 should include:
Interpretation of the Offence
- R v Williams, 2003 SCC 41 (CanLII),  2 SCR 134 at para 22
- Williams, ibid.
The Crown must prove as an essential element to proving the offence in a case of HIV infection that the victim's consent to intercourse was vitiated by the accused's fraudulent concealment of his infection. Specifically, the crown should prove:
- dishonest act to hide HIV status or failure to disclose HIV status;
- the victim's lack of awareness of the infection
- knowledge that would have allowed her to refuse sex (ie. she would not have consented, if known) and
- intercourse would be a significant risk of bodily harm
- the victim was not previously infected by HIV
A "significant risk of serious bodily harm" refers to the "realistic possibility of transmission" of HIV. </ref> This possibility can be negated by the presence of a low viral load and condom use. A "low viral load" is considered below 1,500 copies / mL.
Where sex was unprotected, the size of the viral load is irrelevant.
Consent of the partner must be "clear and unequivocal".
- R v Mabior, 2012 SCC 47 (CanLII)
Mabior, ibid. at para 84, 91
see also R v Wright, 2009 BCCA 514 (CanLII)
- Mabior, ibid. at para 104
- Mabior, ibid. at para 100
- R v Felix, 2013 ONCA 415 (CanLII) at para 48
- Cuerrier, supra at para 127
Mabior, supra at para 65 ("Fraud is fraud, whether by blatant lies or deceit")
Cuerrier, supra at para 123
R v Ewanchuk, 1999 CanLII 711 (SCC),  1 SCR 330 at para 46, 51
As an enumerated offence under s. 274, 275, 276, 277, and 278.2 the following additional evidentiary rules apply:
- Corroboration is not required for conviction and the judge cannot instruct on need for corroboration (s. 274);
- common law rules relating to "recent complaint" do not apply for this offence (s. 275);
- prior sexual history of the complainant "is not admissible to support an inference that...by reason of the sexual nature of that activity, the complainant...is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or... is less worthy of belief." (s. 276);
- any evidence of sexual activity other than the "activity that forms the subject-matter of the charge" must be admitted through a s. 276 application (s. 276);
- any "evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant." (s. 277);
- "no record relating to a complainant or a witness" shall be disclose to the accused except in accordance with a production application under s. 278.3 to 278.91 (s. 278.2).
Section 2 defines "complainant".
Section 265 defines "assault".
Participation of Third Parties
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
On Finding of Guilt
For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
- For general principles on sentence for sexual offences, see Sexual Offences
|s. 273 [aggravated sexual assault]||Straight Indictable||life in custody|
| Minimum Penalty
| Minimum Penalty|
with aggravating factor: prob/restr firearm
From July 2, 2008
|Straight Indictable||5 years custody||7 years custody, if less 10 years bw convictions|
with aggravating factor: firearm use
|Straight Indictable||4 years custody||Same|
with aggravating factor: under 16
From Nov 6, 2012
|Straight Indictable||5 years custody||Same|
with no aggravating factors
s. 718.3, 787
| Custody and
| Custody and
| Conditional |
no aggravating factors
with any aggravating factors
There are no statutory requirements that the sentences be consecutive.
Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years, shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).
(3) In determining, for the purpose of paragraph (2)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:
- (a) an offence under this section;
- (b) an offence under subsection 85(1) or (2) or section 244 or 244.2; or
- (c) an offence under section 220, 236, 239 or 272, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence.
However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
Sequence of convictions only
(4) For the purposes of subsection (3), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
R.S., 1985, c. C-46, s. 273; 1995, c. 39, s. 146; 2008, c. 6, s. 29; 2009, c. 22, s. 11; 2012, c. 1, s. 27.
- see also: Sexual Assault (Sentencing Cases)
The offence of choking under s. 246(a) is not prohibited by a conviction of aggravated sexual assault.
- R v Hill,  OJ No 3956
Ancillary Sentencing Orders
|Weapons Prohibition Orders||s. 273||
|DNA Orders||s. 273||
|SOIRA Orders||s. 273(2)(a), (a.1) or (b)||
Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act
|Section 161 Orders||s. 273||
|Delayed Parole Order||s. 273||
General Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.|
|Restitution Orders (s. 738)||any||A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.|
|Victim Fine Surcharge (s. 737)||any||A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).|
General Forfeiture Orders
|Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))||any||Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.|
|Fine in Lieu of Forfeiture (s. 462.37(3))||any||Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(!) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.|
|Forfeiture of Weapons or Firearms (s. 491)||any||Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.|
|Forfeiture of Offence-related Property (s. 490.1)||any||Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.|