Aggravated Sexual Assault (Offence)

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Aggravated Sexual Assault
s. 273 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Judicial Release Only
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)

(* varies)
Minimum 4, 5, or 7 years incarceration
Maximum Life
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to aggravated sexual assault are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 273 [aggravated sex assault] Indictable Offence(s) N/A Yes

Offences under s. 273 are straight indictable. There is a Defence election of Court under s. 536(2).

Release
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)).

Publication Bans
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).

Offence Designations
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.

Offence Wording

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.


CCC

Proof of the Offence

Proving aggravated sexual assault under s. 273 should include:

  1. Elements of Sexual Assault:
    1. the culprit assaulted the victim (e.g. non-consentual touching)
    2. the sexual nature of the contact;
    3. the absence of consent;
    4. the age of the complainant;
    5. the age of the accused;
    6. the relationship between the complainant and accused;
    7. medical evidence (if any)
  2. Elements of Aggravated Assault:
    1. the injuries amounted to the victim being:
      1. wounded,
      2. maimed,
      3. disfigured, or
      4. had life endangered
  3. Aggravating factors
    1. a firearm was used in the commission of the offence
    2. the complainant is under the age of 16 years

Interpretation of the Offence

This offence is a straight indictable offence. Under s.536(2), the accused can elect the mode of trial.

There must be an objective foresight of the risk of bodily harm.[1] There is no need for the intent to "maim, wound, or injure".[2]

  1. R v Williams, 2003 SCC 41 (CanLII), [2003] 2 SCR 134 at para 22
  2. Williams, ibid.

HIV Infection

See also: Sexual Offences#HIV Infection Cases

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:[1]

  1. dishonest act to hide HIV status or failure to disclose HIV status;
  2. the victim's lack of awareness of the infection
    1. knowledge that would have allowed her to refuse sex (ie. she would not have consented, if known) and
    2. intercourse would be a significant risk of bodily harm
  3. the victim was not previously infected by HIV

A "significant risk of serious bodily harm" refers to the "realistic possibility of transmission" of HIV.[2] </ref> This possibility can be negated by the presence of a low viral load and condom use.[3] A "low viral load" is considered below 1,500 copies / mL.[4]

Where sex was unprotected, the size of the viral load is irrelevant.[5]

There is a positive duty on the accused to disclose their HIV status.[6] A failure to disclose then is the effective equivalent to fraud.[7]

Consent of the partner must be "clear and unequivocal".[8]

  1. R v Mabior, 2012 SCC 47 (CanLII)
  2. Mabior, ibid. at para 84, 91
    see also R v Wright, 2009 BCCA 514 (CanLII)
  3. Mabior, ibid. at para 104
  4. Mabior, ibid. at para 100
  5. R v Felix, 2013 ONCA 415 (CanLII) at para 48
  6. Cuerrier, supra at para 127
  7. Mabior, supra at para 65 ("Fraud is fraud, whether by blatant lies or deceit")
  8. Cuerrier, supra at para 123
    R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330 at para 46, 51

Evidence

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).

Misc Definitions

Section 2 defines "complainant".

Section 265 defines "assault".[1]

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles on sentence for sexual offences, see Sexual Offences

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
s. 273 [aggravated sexual assault] Straight Indictable life in custody

Minimum Penalties

Offence(s) Crown
Election
Minimum Penalty
First Offence
Minimum Penalty
Subsequent Offence
s. 273(2)(a)
with aggravating factor: prob/restr firearm
From July 2, 2008
Straight Indictable 5 years custody 7 years custody, if less 10 years bw convictions
s. 273(2)(a.1)
with aggravating factor: firearm use
Straight Indictable 4 years custody Same
s. 273(2)(a.2)
with aggravating factor: under 16
From Nov 6, 2012
Straight Indictable 5 years custody Same
s. 273(2)(b)
with no aggravating factors
Straight Indictable None None

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 273
no aggravating factors
any X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 273
with any aggravating factors
any X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Principles

Young Victim
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).

Subsequent Offences

273
...
Subsequent offences
(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.


CCC

Ranges

see also: Sexual Assault (Sentencing Cases)

Kienapple

The offence of choking under s. 246(a) is not prohibited by a conviction of aggravated sexual assault.[1]

  1. R v Hill, [2010] OJ No 3956

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
Weapons Prohibition Orders s. 273
  • On conviction under s. 273 where "violence against a person was used, threatened or attempted", and punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a) or where "violence was used, threatened or attempted against" an enumerated party relating to a domestic partnership a weapons prohibition order is mandatory under s. 109(1)(a.1).The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
DNA Orders s. 273
SOIRA Orders s. 273(2)(a), (a.1) or (b)
  • On conviction under s. 273(2)(a), (a.1) or (b), as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is life as the offence has "maximum term of imprisonment for the offence is life" (s. 490.013(2)(c))).
      • There is an option for early termination under s. 490.015 after 20 years.

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
  • If convicted under s. 273, the judge may make discretionary 161 Order.
Delayed Parole Order s. 273
  • Periods of imprisonment of 2 years or more for convictions under s. 273 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".

General Sentencing Orders

Order Conviction Description
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 Conviction Description
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.

History

See also: List of Criminal Code Amendments

See Also