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Indecent Assault (Offence) (Repealed)

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2024. (Rev. # 97874)
Indecent Assault
Section 149, 156 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

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

* Must be indictable.
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)
Minimum None
Maximum 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

See also: Gross Indecency (Offence) (Repealed)
Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 149, 156 [indecent assault] Indictable Offence(s) (under 14 years max)

Offence Wording

Indecent assault on female

149 (1) Every one who indecently assaults a female person is guilty of an indictable offence and is liable to imprisonment for five years and to be whipped.

Consent by false representations

(2) An accused who is charged with an offence under subsection (1) may be convicted if the evidence establishes that the accused did anything to the female person with her consent that, but for her consent, would have been an indecent assault, if her consent was obtained by false and fraudulent representations as to the nature and quality of the act.
1953-54, c. 51, s. 141.

Indecent assault on male

156. Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years and to be whipped.
1953-54, c. 51, s. 148.

This was repealed in An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980-81-82-83, c. 125, s. 8. It came into force January 4, 1983.


Proof of the Offence

Proving indecent assault under s. 149, 156 should include:[1]

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit performed an act;
  5. the culprit applied force to the complainant directly or indirectly.
  6. the culprit intentionally applied force to the complainant in circumstances which had the quality of indecency.
  7. the complainant was under the age of 14 years at the time of the alleged offence or that the complainant was the age of 14 years or older and did not consent to the application of force or did not consent validly due to the accused inducing the complainant to engage in the activity by abusing a position of trust, power, or authority.
  8. the complainant is a female person (149) or male person (156) .
  1. R v Leroux, 2013 SKQB 395 (CanLII) at para 71

Interpretation

Elements of Proof

It is not necessary that the Crown prove that the accused intended to indecently assault the victim, on that he intended to commit assault, and it was in "circumstances of indecency."[1]

Definition of Indecent Assault

The term "indecent assault" was not defined in the Code. The case law defined it as "an assault that is committed in circumstances of indecency, or as sometimes described, an assault with acts of indecency."[2] It has also been described as "the application of force in an indecent manner upon an unwilling partner or person under 14".[3]

The only mental element for indecent assault is one of general intent.[4]

Definition of Indecent

What constitutes "indecent" is a question of fact and is determined on a case-by-case basis.[5] Determination "will depend upon an objective view of the facts and circumstances in relation to the actual assault, and not upon the mental state of the accused"[6]

Buggery

The meaning of buggery has the same definition as "anal intercourse".[7]

Compared to Gross Indecency

By contrast, "gross indecency" may involve acts that are indecent assaults or those that are consensual.[8]

Compared to Sexual Assault

The two offence overlap in many ways and will capture the same conduct in certain case, both relates to acts that violate the sexual integrity of the victim. The distinguishing element is that for sexual assault, there is an objective requirement of a sexual purpose. [9]

Consent

Section 150 of the Code removes consent as a defence for a complainant under the age of 14:

140. Where an accused is charged with an offence under section 146, 149 or 156 [indecent assault, male] in respect of a person under the age of fourteen years, the fact that the person consented to the commission of the offence is not a defence to the charge.


[annotation(s) added]

  1. R v Resener, 1968 CanLII 817 (BC CA), 4 CCC 129, per J
    R v O'Brien, 1976 CanLII 2621 (NL SC), 31 CCC (2d) 396
  2. R v Swietlinski, 1980 CanLII 53 (SCC), [1980] 2 SCR 956 (SCC), per McIntyre J
    R v Leary, per Martin JA, at p. 57.
  3. R v English, 1993 CanLII 3373 (NL CA), 84 CCC (3d) 511, per Goodridge CJ at p .346
  4. Swietlinski, supra
    Leary ("The only intent required for indecent assault is the general or basic intent to do the act which, in the circumstances in which it was done, in fact, constitutes an indecent assault.")
  5. Swietlinski, ibid.
  6. Swietlinski, ibid., at para 17
    R v Leeson (1968), 52 Cr. App. 185 at p. 187
  7. R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752, paras. 99-100, Pepall J.A. concurring
  8. English, ibid. at p. 346
  9. R v Trachy, 2019 ONCA 622, 147 O.R. (3d) 250, Benotto J.A at para 72


Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 266 [assault]
Weapons Prohibition Orders s. 266 [assault]
    • Where there is a conviction under s. 266 for an offence not otherwise referred to in s. 109, where "violence against a person was used, threatened or attempted" or "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", a discretionary prohibition order of any of these items is permitted under s. 110 regardless of Crown election where "it is desirable, in the interests of the safety of the person or of any other person".
      • Duration: The Order is for no more than 10 years starting at release from custody or at sentencing where custody is not ordered. If there is a prior conviction for an offence eligible for a s. 109 Order, the duration must be life. If violence is "used, threatened or attempted against" their past or present intimate partner, a child or parent of the said partner, or a person who resides with the said partner or the offender, the duration can be up to life in duration.
      • If the judge declines to make an Order or not order all the possible terms, "the court shall include in the record a statement of the court's reasons for not doing so." (s. 110(3))
Delayed Parole Order s. 266 [assault]
  • Periods of imprisonment of 2 years or more for convictions under s. 266 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 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 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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

History

1970

Criminal Code, R.S.C. 1970, c. C-34, s. 156.

Indecent assault on male

156. Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years and to be whipped. 1953-54, c. 51, s. 148. An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof,

S.C. 1980-81-82-83, c. 125, s. 9.

1906

Criminal Code, R.S.C. 1906, c. 146, s. 292.

Offence. Penalty.
Indecent assault on female. — Consent procured by fraud. — Assaults on females.

292. Every one is guilty of an indictable offence and liable to two years’ imprisonment, and to be whipped, who,—

(a) indecently assaults any female; or,
(b) does anything to any female by her consent which but for such consent would be an indecent assault, if such consent is obtained by false and fraudulent representations as to the nature and quality of the act.

55-56 V., c. 29, s. 259.

1909

An Act to amend the Criminal Code, S.C. 1909, c. 9, s. 2.

[Offence. Penalty.] 292. Every one is guilty of an indictable offence and liable to two years’ imprisonment, and to be whipped, who,— [Indecent assault on female.] (a) indecently assaults any female; or, [Consent procured by fraud.] (b) does anything to any female by her consent which but for such consent would be an indecent assault, if such consent is obtained by false and fraudulent representations as to the nature and quality of the act. [Assaults on females.] (c) assaults and beats his wife or any other female and thereby occasions her actual bodily harm. [55-56 V., c. 29, s. 259.]

1927

Criminal Code, R.S.C. 1927, c. 36, s. 292.

[Offence. Penalty.] 292. Every one is guilty of an indictable offence and liable to two years' imprisonment, and to be whipped, who [Indecent assault on female.] (a) indecently assaults any female; or [Consent procured by fraud.] (b) does anything to any female by her consent which but for such consent would be an indecent assault, if such consent is obtained by false and fraudulent representations as to the nature and quality of the act; or [Assaults on females.] (c) assaults and beats his wife or any other female and thereby occasions her actual bodily harm. R.S., c. 146, s. 292; 1909, c. 9, s. 2.

1953

Criminal Code, S.C. 1953-54, c. 51, s. 141.

[Indecent assault on female.] 141. (1) Every one who indecently assaults a female person is guilty of an indictable offence and is liable to imprisonment for five years and to be whipped. [Consent by false representations.] (2) An accused who is charged with an offence under subsection (1) may be convicted if the evidence establishes that the accused did anything to the female person with her consent that, but for her consent, would have been an indecent assault, if her consent was obtained by false and fraudulent representations as to the nature and quality of the act. Criminal Code, R.S.C. 1970, c. C-34, s. 149.

[Indecent assault on female] 149. (1) Every one who indecently assaults a female person is guilty of an indictable offence and is liable to imprisonment for five years and to be whipped. [Consent by false representations] (2) An accused who is charged with an offence under subsection (1) may be convicted if the evidence establishes that the accused did anything to the female person with her consent that, but for her consent, would have been an indecent assault, if her consent was obtained by false and fraudulent representations as to the nature and quality of the act. 1953-54, c. 51, s. 141. An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980-81-82-83, c. 125, s. 8.

The Criminal Code, 1892, S.C. 1892, c. 29, s. 260.

[Indecent assaults on males.] 260. Every one is guilty of an indictable offence and liable to seven years’ imprisonment and to be whipped who assaults any person with attempt to commit sodomy, or who, being a male, indecently assaults any other male person. R.S.C., c. 157, s. 2.

1892

An Act to amend the Criminal Code, 1892, S.C. 1893, c. 32, s. 1.

[Indecent assaults on males.] 260. Every one is guilty of an indictable offence and liable to ten years’ imprisonment and to be whipped who assaults any person with intent to commit sodomy, or who, being a male, indecently assaults any other male person. R.S.C., c. 157, s. 2.

1906

Criminal Code, R.S.C. 1906, c. 146, s. 293.

[Indecent assault on males.] 293. Every one is guilty of an indictable offence and liable to ten years’ imprisonment, and to be whipped, who assaults any person with intent to commit sodomy or who, being a male, indecently assaults any other male person. 55-56 V., c. 29, s. 260; 56 V., c. 32, s. 1.

1927

Criminal Code, R.S.C. 1927, c. 36, s. 293.

[Indecent assault on males] 293. Every one is guilty of an indictable offence and liable to ten years' imprisonment, and to be whipped, who assaults any person with intent to commit sodomy or who, being a male, indecently assaults any other male person. R.S., c. 146, s. 293.

1953

Criminal Code, S.C. 1953-54, c. 51, s. 148.

Indecent assault on male.]

148. Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years and to be whipped.

1892

The Criminal Code, 1892, S.C. 1892, c. 29, s. 259.

Indecent assaults on females.

259. Every one is guilty of an indictable offence and liable to two years’ imprisonment, and to be whipped, who—

(a) indecently assaults any female, or
(b) does anything to any female by her consent, which but for such consent would be an indecent assault, such consent being obtained by false and fraudulent representations as to the nature and quality of the act.

53 V., c. 37, s. 12.

See Also