Aggravated Sexual Assault (Offence)
|Aggravated Sexual Assault|
|s. 273 of the Crim. Code|
|Election / Plea|
Sup. Court w/ Jury (*)
|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 Record Suspensions and Pardons
- 9 History
- 10 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 sexual assault]||Indictable Offence(s)||(life max)|
Offences under s. 273 [aggravated sexual assault] are straight indictable. There is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).
by Peace Officer
by Judge or Justice
s. 508(1), 512(1), or 788
s. 498, 499, and 501
a Judge or Justice
on a Release Order
s. 515 to 519
|Direct to Attend |
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
|s. 273 [aggravated sexual assault]|
When charged under s. 273 [aggravated sexual assault], the accused can be given a judicial summons without arrest. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He 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".
- Reverse Onus Bail
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)).
- Fingerprints and Photos
A peace officer who charges a person under s. 273 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- Publication Bans
For all criminal or regulatory prosecutions, 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
|AG Consent Required||Serious Criminality|
s. 36 IRPA
|s. 273 [aggravated sexual assault]||(Primary)||(enumerated in s. 752 definition (b))|
Offences under s. 273 [aggravated sexual assault] are designated offences eligible for wiretap under s. 183.
Section s. 273 [aggravated sexual assault] offences are "primary designated offences" under s. 752 for a Dangerous Offender Order. The offender will be deemed a "substantial risk" for a Long-Term Offender Order under s. 753.1.
Offences under s. 273 [aggravated sexual assault] 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.
Draft Form of Charges
|"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"AND FURTHER at the same time and place aforesaid, he [or she]..."|
|Code Section||Subject of Offence||Draft Wording|
|273||"... contrary to section 273 of the Criminal Code."|
Proof of the Offence
Proving aggravated sexual assault under s. 273 should include:
Interpretation of the Offence
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. 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), per McLachlin CJ
Mabior, ibid., at paras 84, 91
see also R v Wright, 2009 BCCA 514 (CanLII), per Tysoe JA
- Mabior, ibid., at para 104
- Mabior, ibid., at para 100
- R v Felix, 2013 ONCA 415 (CanLII), per Cronk JA, at para 48
- R v Cuerrier,  2 SCR 371, 1998 CanLII 796 (SCC), per Cory J, 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, per Major J, at paras 46, 51
Section 486.3(2) creates a mandatory prohibition for a self-represented accused to cross-examine the alleged victim (regardless of age) on application of the Crown or victim where the accused is charged with criminal harassment (264), sexual assault (271), sexual assault with a weapon/causing bodily harm (272) or aggravated sexual assault (273) and it is not necessary for the "proper administration of justice".
- Modification of Rules of Evidence
For offences under this section (s. 273):
- corroboration is not required for conviction and the judge cannot instruct on need for corroboration: see Corroboration under s. 274.
- common law rules relating to "recent complaint" do not apply: see Credibility under s. 275.
- Limitations on Admissibility of Evidence
For offences under this section (s. 273):
- 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.": see Evidence of complainant’s sexual activity under 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.": See reputation evidence under s. 277.
- "A husband or wife may be charged ...in respect of his or her spouse, whether or not the spouses were living together at the time the activity that forms the subject-matter of the charge occurred.": see s. 278.
- Holdback of Disclosure
For offences under this section (s. 273), s. 278.2 prevents the Crown from disclosing any records attracting a "reasonable expectation of privacy" that relate "to a complainant or a witness" unless applied for through the process described in s. 278.3 to 278.91: see Production of Records for Sexual Offences. Should the privacy-holder agree to waive their privacy rights, the protected materials may be disclosed.
Section 2 defines "complainant".
Section 265 defines "assault".
Participation of Third Parties
- 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
s. 606(4.1), (4.2)
|Victim Notice |
of Impact Statement
|s. x [x]|
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
- Maximum Penalties
|s. 273 [aggravated sexual assault]||Straight Indictable||life incarceration|
- Minimum Penalties
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
- Available Dispositions
s. 718.3, 787
no aggravating factors
with any aggravating factors
- Consecutive Sentences
Under s. 718.3(7), where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence must be consecutive where:
- one of the sexual offences against that child is an offence relating to child pornography under s. 163.1. (see s. 718.3(7)(a)); or
- each of the sexual offences against a child, other than a child pornography offence, related to a different child. (see s. 718.3(7)(a))
[note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]
- 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).
- see also: Sexual Assault (Sentencing Cases)
The offence of choking under s. 246(a) is not prohibited by a conviction of aggravated sexual assault.
Ancillary Sentencing Orders
- Offence-specific Orders
|Weapons Prohibition Orders||s. 273 [aggravated sexual assault]||
|DNA Orders||s. 273 [aggravated sexual assault]||
|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 [aggravated sexual assault]||
|Delayed Parole Order||s. 273 [aggravated sexual assault]||
- General Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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(1) 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.|
Record Suspensions and Pardons
Convictions under s. 273 [aggravated sexual assault] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".
- Victim Under 18
Convictions under s. 271 [sexual assault] (where victim is under 18) are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. An exception can be made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference between victim and offender is less than 5 years.