Sexual Assault with a Weapon or Causing Bodily Harm (Offence)

• < Criminal Law/Sentencing
• < Offences

Sexual Assault with a Weapon or Causing Bodily Harm
s. 272 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.
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	5 years incarceration (first, rest. f-arm) 7 years incarceration ((subseq., rest. f-arm) 4 years incarceration (other f-arm)
Maximum	14 years incarceration
Reference
Offence Elements Sentence Digests

Overview

Offences relating to sexual assault with a weapon or causing bodily harm 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)	Preliminary Inquiry
s. 272(1)(a) [sexual assault with a weapon]	Indictable Offence(s)			(14 years max)
s. 272(1)(a) [sexual assault with threats]	Indictable Offence(s)			(14 years max)
s. 272(1)(c) [sexual assault causing bodily harm]	Indictable Offence(s)			(14 years max)
s. 272(1)(c.1) [sexual assault with choking]	Indictable Offence(s)			(14 years max)

Offences under s. 272 [sexual assault with a weapon or causing bodily harm] 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).

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By 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. 272 [sexual assault with a weapon or causing bodily harm]	Template:ReleaseProfileOnlyBail

Under s. 515(6)(a)(vii), offences charged under s. 272 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 weapon, being 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)).

And, regardless of Crown election, if the offence alleged was one:

• where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
• where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
• where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

Fingeprints and Photos

A peace officer who charges a person under s. 272 [sexual assault with a weapon or causing bodily harm] 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. 272 [sexual assault with a weapon or causing bodily harm] 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

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 272 [sexual assault with a weapon or causing bodily harm]		(primary)	(enumerated in s. 752 definition (b))

Offences under s. 272 [sexual assault with a weapon or causing bodily harm] are designated offences eligible for wiretap under s. 183.

Section s. 272 [sexual assault with a weapon or causing bodily harm] 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. 272 [sexual assault with a weapon or causing bodily harm] 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

Sexual assault with a weapon, threats to a third party or causing bodily harm

272 (1) Every person commits an offence who, in committing a sexual assault,

(a) carries, uses or threatens to use a weapon or an imitation of a weapon;

(b) threatens to cause bodily harm to a person other than the complainant;

(c) causes bodily harm to the complainant;

(c.1) chokes, suffocates or strangles the complainant; or

(d) is a party to the offence with any other person.

Punishment

(2) Every person who commits an offence under subsection (1) [sexual assault with a weapon, threats to a third party or causing bodily harm] 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 a term not exceeding 14 years 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 a term not exceeding 14 years 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 a term not exceeding fourteen years.

Subsequent offences

(3) In determining, for the purpose of paragraph (2)(a) [sexual assault with a weapon or causing bodily harm – with firearm or for crim org], 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) [use of firearm or imitation in commission of an offence] or section 244 [discharging firearm] or 244.2 [discharging firearm – recklessness]; or

(c) an offence under section 220 [criminal negligence causing death], 236 [manslaughter], 239 [attempted murder] or 273 [aggravated sexual assault], subsection 279(1) [kidnapping] or section 279.1 [hostage taking], 344 [robbery] or 346 [extortion] 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. 272; 1995, c. 39, s. 145; 2008, c. 6, s. 28; 2009, c. 22, s. 10; 2012, c. 1, s. 26; 2015, c. 23, s. 15; 2019, c. 25, s. 97.

– CCC

Draft Form of Charges

		Pre-ambles
		"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
		"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving sexual assault with a weapon under s. 272(a) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit sexually assaulted the victim and ☐ the assault occurred while the culprit "carries, uses or threatens to use a weapon or an imitation of a weapon" . Proving sexual assault causing bodily harm under s. 272 (b) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit sexually assaulted the victim; and ☐ the culprit "threatens to cause bodily harm to a person other than the complainant".

Proving sexual assault causing bodily harm under s. 272 (c) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit sexually assaulted the victim; ☐ in doing so the accused caused "bodily harm", (See Causation) and ☐ there was an objective foresight of the risk of bodily harm . Aggravating Factors to any offence under s. 272 any aggravating factor: ☐ the culprit "used" a "restricted firearm or prohibited firearm" "in the commission of the offence" (aggravating); ☐ "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" (aggravating). ☐ if "firearm is used in the commission of the offence" (aggravating); or ☐ "the complainant is under the age of 16 years".

Interpretation of the Offence

See also Sexual Offences

It is not an essential element of the offence that the assailant cause bodily harm to the complainant.

The use of a sex toy in the sexual assault may be considered sufficient to amount to sexual assault with a weapon where the accused "knowingly or recklessly used the object without the consent of the victim in circumstances where injury was reasonably foreseeable".

Evidence

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. 272):

• 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. 272):

• 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. 272), 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.

Defences

The statutory defence of duress is excluded by s. 17 from applying to offences of sexual assault with a weapon or causing bodily harm.

Consent

A defence of consent it only available in limited circumstances. Where it is established that the accused intended to inflict bodily harm consent becomes irrelevant.

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

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
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

Offence(s)	Crown Election	Maximum Penalty
s. 272(1)(a), (d) [sexual assault with a weapon] Victim aged 16 or more	N/A	14 years incarceration
s. 272(1)(b), (c), (d) [sexual assault threatening or causing bodily harm] Victim aged 16 or more	N/A	14 years incarceration
s. 272(1) [sexual assault with a weapon or causing bodily harm] Victim under 16 From July 17, 2015	N/A	life incarceration

Offences under s. 272(1) are straight indictable. The maximum penalty is 14 years incarceration.

Minimum Penalties

Offence(s)	Crown Election	Minimum Penalty First Offence	Minimum Penalty Subsequent Offence
s. 272(1) [sexual assault with a weapon or causing bodily harm]	N/A	None	Same
s. 272(1) [sexual assault with a weapon or causing bodily harm] Re Certain Firearms/Organized Crime From May 1, 2008	N/A	5 years custody	7 years incarceration, if within 10 years
s. 272(1) [sexual assault with a weapon or causing bodily harm] Re Other Firearms	N/A	4 years custody	Same
s. 272(1) [sexual assault with a weapon or causing bodily harm] Victim Under 16 Years From May 1, 2008	N/A	5 years incarceration	Same

Where the offence has an aggravating factor listed in s. 272(2)(a) then the minimum is 5 years incarceration, or 7 years incarceration with a prior conviction. Under s. 272(3) prior offence within the meaning of s. 272(2)(a)(ii) can include convictions under s. 272 [sexual assault with a weapon or causing bodily harm], 85(1), (2), 244, or 244.2. Likewise, s. 220, 236, 239, 273, 279(1), 279.1, 344, 346 where a "a firearm was used in the commission of the offence".

Where the offence has an aggravating factor listed in s. 272(2)(a.1), a "firearm is used in the commission of the offence", then the minimum is 4 years incarceration.

Where the offence has an aggravating factor listed in s. 272(2)(a.2), a "complainant is under the age of 16 years", then the minimum is 4 years incarceration.

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. 272(a), (a.1), or (a.2) No Aggravating Factors	any
s. 272(a), (a.1), or (a.2) With Aggravating Factors	any

Where no aggravating factor listed in s. 272(a), (a.1), or (a.2), then there is no discharges or conditional sentences.

Where any aggravating factor listed in s. 272(a), (a.1), or (a.2) are present, then there is no discharges, suspended sentences, stand-alone fines, or conditional sentences.

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]

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).

Ranges

see also: Sexual Assault (Sentencing Cases)

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
Weapons Prohibition Orders	s. 272 [sexual assault with a weapon or causing bodily harm]	On conviction under s. 272 [sexual assault with a weapon or causing bodily harm] 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. 272 [sexual assault with a weapon or causing bodily harm]	For convictions under s. 272 [sexual assault with a weapon or causing bodily harm] , as listed under s. 487.04(a), a DNA Order is mandatory as a primary designated offence under s. 487.051(1) regardless of Crown election.
SOIRA Orders	s. 272 [sexual assault with a weapon or causing bodily harm]	On conviction under s. 272(2) or (2)(a.2), a "primary offence" listed as under s. 490.011(1)(a), a SOIRA Order is presumed mandatory unless "there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring [registration]" or "the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by [registration]". If the offender was previously convicted of a "primary offence" the duration is life (s. 490.012(2)) Otherwise, the duration is 20 years as the offence has "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b))). There is an option for early termination under s. 490.015 available after 10 years (if 20 year order) or 20 years (if life order). 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. 272 [sexual assault with a weapon or causing bodily harm]	If convicted under s. 272 [sexual assault with a weapon or causing bodily harm] , the judge may make discretionary 161 Order.
Delayed Parole Order	s. 272 [sexual assault with a weapon or causing bodily harm]	Periods of imprisonment of 2 years or more for convictions under s. 272 [sexual assault with a weapon or causing bodily harm] 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.

Record Suspensions and Pardons

Convictions under s. 272 [sexual assault with a weapon or causing bodily harm] 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".

History

• History of Sexual Assault with a Weapon or Causing Bodily Harm