Sexual Assault (Offence)

From Criminal Law Notebook
Revision as of 21:50, 26 August 2024 by Admin (talk | contribs)
(diff) ← Older revision | Latest revision (diff) | Newer revision → (diff)
This page was last substantively updated or reviewed January 2020. (Rev. # 96258)
Sexual Assault
s. 271 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

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

* Must be indictable. Preliminary inquiry also available.
Summary 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 6 months incarceration (if < 16 years)
Maximum 18 months incarceration
2 years less a day incarceration (if < 16 years)
Indictable Dispositions
Avail. Disp. same as summary
Minimum 1 year incarceration (if < 16 years)
Maximum 10 years incarceration (if 16 years above)
14 years incarceration (if < 16 years)
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to 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)		 Preliminary Inquiry
s. 271 [sexual assault, victim 16 and above] Hybrid Offence(s) (* only if Crown proceeds by Indictment) (under 14 years max)
s. 271 [sexual assault, victim under 16] Hybrid Offence(s) (* only if Crown proceeds by Indictment) (14 years max)

Offences under s. 271 [sexual assault, victim 16 and above] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Offences under s. 271 [sexual assault, victim under 16] are hybrid with a Crown election. If prosecuted by indictment, 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. 271 [sexual assault, victim 16 and above]
s. 271 [sexual assault, victim under 16]

When charged under s. 271 [sexual assault, victim 16 and above] , the accused can be given an appearance notice without arrest under s. 497 or a summons. 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.

When charged under s. 271 [sexual assault, victim under 16], 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.

Fingerprints and Photos

A peace officer who charges a person under s. 271 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. 271 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. 271 [sexual assault] (Primary) (enumerated in s. 752 definition (b)) (at least 10 years max)

Offences under s. 271 are designated offences eligible for wiretap under s. 183.

Section s. 271 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. 271 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

271 Everyone who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

R.S., 1985, c. C-46, s. 271; R.S., 1985, c. 19 (3rd Supp.), s. 10; 1994, c. 44, s. 19; 2012, c. 1, s. 25; 2015, c. 23, s. 14.

– CCC (CanLII), (DOJ)

Note up: 271

Draft Form of Charges

See also: 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
271 sexual assault "..., did commit sexual assault on [complaint] contrary to section 271 of the Criminal Code."
144 rape (between 1970 and 1982) "..., did commit rape on [complaint] contrary to section 144 of the Criminal Code."
145 attempted rape (between 1970 and 1982) "..., did commit attempted rape on [complaint] contrary to section 145 of the Criminal Code."

Proof of the Offence

Proving sexual assault under s. 271 should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit assaulted the victim (e.g. non-consensual touching)
  5. ☐ the sexual nature of the contact;
  6. ☐ the absence of consent;
  7. ☐ the age of the complainant;
  8. ☐ the age of the culprit;
  9. ☐ the relationship between the complainant and culprit;
  10. ☐ medical evidence (if any)

Interpretation of the Offence

See also: Sexual Offences

A sexual assault is an assault (as defined in s. 265) in which the complainant's sexual integrity in violated.[1]

Purpose

The purpose of sexual assault based offences it to "protect sexual autonomy."[2] It protects the "personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy."[3] The offence "expresses society’s determination to protect the security of the person from any non-consensual contact or threats of force.."[4]

Core Elements

The offences requires an actus reus of sexual touching (ie. an assault) without actual subjective consent.[5]

Mens Rea

The mens rea of the offence is the intention touch while knowing or being reckless to a lack of consent to the sexual act in question.[6]

The mens rea for a lack of consent does not require the accused to be told "no". It can also be made out where the accused knew the complainant was "not saying 'yes'."[7]

The accused's mere speculative belief that there was consent is no defence.[8]

The mens rea can be negated in limited circumstances by the defence of "honest but mistaken belief" in consent.[9] It is only at the mens rea stage of analysis in an "honest but mistaken belief in consent" does the "accused's perceptions of the complainant's state of mind" become relevant.[10]

  1. ↑ R v Chase, 1987 CanLII 23 (SCC), [1987] 2 SCR 293, per McIntyre J, at p. 302 ("Sexual assault is an assault within any one of the definitions of that concept ...which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated.")
  2. ↑ R v Hutchison, 2014 SCC 19 (CanLII), [2014] 1 SCR 346, per McLachlin CJ and Cromwell J, at para 17
  3. ↑ R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330, per Major J, at para 28
  4. ↑ Ewanchuk
  5. ↑ R v DWR, 2013 SKQB 368 (CanLII), per Acton J, at para 23
    R v JA, 2011 SCC 28 (CanLII), [2011] 2 SCR 440, per McLachlin CJ, at para 23
    see R v Kanoa, 2015 BCPC 124 (CanLII), per Skilnick J, at para 41 - judge gives a list of foundational principles
  6. ↑ DWR, supra, at para 23
    JA, supra, at para 24
  7. ↑ R v Park, 1995 CanLII 104 (SCC), [1995] 2 SCR 836, per L'Heureux‑Dubé J , at para 39 ("...the mens rea of sexual assault is not only satisfied when it is shown that the accused knew that the complainant was essentially saying "no", but is also satisfied when it is shown that the accused knew that the complainant was essentially not saying "yes".")
  8. ↑ Ewanchuk, supra, at para 46
    Park, supra, at para 44
  9. ↑ JA, supra, at para 24 ("The accused may raise the defence of honest but mistaken belief in consent if he believed that the complainant communicated consent to engage in the sexual activity. However, as discussed below, ss. 273.1(2) and 273.2 limit the cases in which the accused may rely on this defence.")
  10. ↑ R v Smith, 2018 ABQB 199 (CanLII), per Goss J, at para 41

Assault

See also: Common Assault (Offence) and Consent

The assault component of the offence arises "from the lack of consent on the part of the victim in relation to the touching". [1]

It is an assault whose essence requires touching at the least.[2]

  1. ↑ R v Bernier, 1997 CanLII 9937 (QC CA), 119 CCC (3d) 467, per Deschamps JA, aff'd 1998 CanLII 830 (SCC), [1998] 1 SCR 975, per L’Heureux‑Dubé J at 474
  2. ↑ R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330, per Major J

Sexual Nature

Determination of whether the contact is of a sexual nature is on an objective standard in light of all the circumstances.[1]

Circumstantial Factors

In determining if the contact was of a sexual nature, the court may look at the surrounding circumstances, including:[2]

  • the body touched,
  • the nature of the contact,
  • the situation in which it occurred,
  • the words and gestures accompanying the act,
  • all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force; and
  • intent or purpose of the person committing the act.
No Sexual Purpose or Gratification Needed

Proof of a sexual motivation can be probative to the analysis to determine whether the act was objective sexual in nature.[3]

But the accused's sexual gratification is not an essential element.[4] All that is required is an act that violates the sexual integrity of the victim. [5]

The accused does not need to have a sexual motive or purpose in the assault. Disciplining or humiliating a person in a sexual manner is a sexual assault.[6] It can also be of a "sexual nature" where it is performed for a purported "educational" performance.[7]

For example, a punch to the face can be of sexual nature.[8]

A murder that occurs while the female victim is partially undressed and largely naked will render the murder to be of a sexual nature.[9]

Surreptitious Activity

An accused who is giving a consensual massage while surreptitiously masturbating is a non-consensual assault of a sexual nature.[10]

Medical Context

An alleged sexual assault in the context of a medical procedure requires the judge to consider whether there is evidence showing the conduct "had a sexual character in addition to whatever medical character that conduct might have had."[11] There should be evidence such as "patient testimony" or "anomalous activities", that indicates that the touching was "not simply a medical examination or activity, but something more."[12]

  1. ↑ R v Chase, 1987 CanLII 23 (SCC), [1987] 2 SCR 293, per McIntyre J, at para 11 ("in determining whether the impugned conduct has the requisite sexual nature is an objective one: “Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer”")
    R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330, per Major J
    R v Farouk, 2019 ONCA 662 (CanLII), at para 33, per Harvison Young JA
  2. ↑ Chase, supra, at para 11
    R v Marshall, 2017 ONCA 801 (CanLII), per Epstein JA, at paras 51 to 53
    Farouk, supra, at para 33("The circumstances to be considered include the part of the body touched, the nature of the contact, the situation in which the contact occurred, and any words or gestures accompanying the act, among other things. The intent or purpose of the person committing the act may also be a factor in considering whether the conduct was sexual, but it is only one factor to be considered in the analysis")
  3. ↑ R v PLS, 1991 CanLII 103 (SCC), [1991] 1 SCR 909, per Sopinka J
    R v KA, 2017 SKCA 39 (CanLII), per Ottenbreit JA, at para 7
    R v Lutoslawski, 2010 SCC 49 (CanLII), [2010] 3 SCR 60, per Binnie J
  4. ↑ PLS, ibid., at paras 31 to 33
    R v GB, 2009 BCCA 88 (CanLII), 244 CCC (3d) 185, per Kirkpatrick JA
  5. ↑ R v KBV, 1993 CanLII 109 (SCC), [1993] 2 SCR 857, per Iacobucci J - father squeezes son's genitals as an act of retribution
  6. ↑ KBV, ibid.
    R v VCAS, 2001 MBCA 85 (CanLII), 246 WAC 198, per Helper JA - father attempting to humiliate son by touching his penis
    R v Nicolaou, 2008 BCCA 300 (CanLII), 239 CCC (3d) 283, per Chiasson JA - "forced examination of the Complainant’s vagina for the purposes of determining the presence of secreted narcotics"
    R v Mastronardi, 2014 BCCA 302 (CanLII), 313 CCC (3d) 295, per D Smith JA "a fake gynecologist" does "medical" examinations of female's genitals
    R v Bernier, 1998 CanLII 830 (SCC), [1998] 1 SCR 975, per L'Heureux-Dube J, aff'ing 1997 CanLII 9937 (QCCA), per Deschamps JA - a hospital staff member who touched a patient's breasts and genitals as a joke
  7. ↑ R v MM, 1996 CanLII 943 (ON CA), 30 WCB (2d) 339, per Finlayson JA
  8. ↑ e.g. R v Higginbottom, 2001 CanLII 3989 (ON CA), 156 CCC (3d) 178, per Charron JA
  9. ↑ R v Johnstone, 2014 ONCA 504 (CanLII), 313 CCC (3d) 34, per Rouleau JA
  10. ↑ R v Bourdon, 2014 ABCA 34 (CanLII), per curiam
  11. ↑ R v Litchfield, 1993 CanLII 44 (SCC), [1993] 4 SCR 333, per Iacobucci J, at para 52
  12. ↑ R v Delacruz, 2016 ABQB 187 (CanLII), AJ No 311, per Ross J, at para 174

Intent

The mens rea of sexual assault is "intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched." [1]

Sexual assault is a general intent offence. Since the offence is not a specific intent offence, intoxication is not a defence.[2] However, extreme intoxication to the point of automatism can be a defence at common law, but s. 33.1 overrules the common law on this point.[3]

  1. ↑ R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330, per Major J, at para 42
    R v Davis, 1999 CanLII 638 (SCC), [1999] 3 SCR 759, per Lamer CJ, at para 80
  2. ↑ R v Litchfield, 1993 CanLII 44 (SCC), [1993] 4 SCR 333, per Iacobucci J
    R v S(PL), 1991 CanLII 103 (SCC), [1991] 1 SCR 909, per Sopinka J
    R v Chase, 1987 CanLII 23 (SCC), [1987] 2 SCR 293, per McIntyre J
  3. ↑ see Intoxication

Consent

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".

Considered Evidence

Sexual offences will often involve evidence including:

  • Video statements of alleged victim and other eye-witnesses
  • Video surveillance evidence showing demeanour before and after incident
  • Sexual Assault Kit results and other medical records
  • toxicology results for drugs and/or alcohol
Modification of Rules of Evidence

For offences under this section (s. 271 [sexual assault] ):

Limitations on Admissibility of Evidence

For offences under this section (s. 271 [sexual assault]):

  • 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. 271 [sexual assault]), 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.

Sexual Assault-based Offences

Defences

The statutory defence of duress is excluded by s. 17 from applying to offences of sexual assault.

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Complainant Privacy Rights in Sexual Offences

A complainant has a right to be notified of any party seeking to admit any evidence of sexual activity other than the activity making up the alleged offence.

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. 271 [sexual assault]

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. 271 [sexual assault] summary election 18 months incarceration
s. 271 [sexual assault]
Until 1994		 summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 271 [sexual assault, victim under 16]
From July 17, 2015		 summary election 2 years less a day incarceration
s. 271 [sexual assault] indictable election 10 years incarceration
s. 271 [sexual assault, victim under 16]
From July 17, 2015		 indictable election 14 years incarceration


Offences under s. 271 are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Minimum Penalties
Offence(s) Crown
Election		 Minimum Penalty
First Offence		 Minimum Penalty
Subsequent Offence
s. 271 [sexual assault, victim under 16]
From July 17, 2015		 indictable election 1 year incarceration Same
s. 271 [sexual assault, victim under 16]
From July 17, 2015		 Summary Election 6 months custody Same
s. 271 [sexual assault, victim under 16]
August 9, 2012 to July 16, 2015		 Summary Election 90 days custody Same
s. 271 [sexual assault, victim under 16]
From August 9, 2012		 indictable election 1 year custody Same

Where the victim is under the age of 16 years, the minimum is 1 year on indictable election and 90 days on summary election. Where the victim is 16 years and older, there are no minimum penalties.

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.271
No Aggravating Facts		 summary election
s.271
No Aggravating Facts
From August 9, 2012		 indictable election
s. 271
With Victim Under the Age 16
From August 9, 2012		 any
s.271
Before August 9, 2012		 indictable election
s. 271
With Victim Under the Age 16
Before August 9, 2012		 any

For offences under s. 271, when prosecuted by summary conviction, all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Where the victim is under the age of 16 years, it is not possible to order a discharge, suspended sentence, or conditional sentence.[1]

Offences under s. 271 are ineligible for a conditional sentence order, when prosecuted by indictment, as the offence is enumerated as ineligible under s. 742.1(f).

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]

Constitutionality

The mandatory minimum of 1 year for sexual assault against someone under the age of 16 was found by some courts to be unconstitutional as it was cruel and unusual punishment contrary to s. 12 of the Charter.[2]

  1. ↑ Only where the offence occurs after August 9, 2012.
  2. ↑ R v Deyoung, 2016 NSPC 67 (CanLII), per Atwood J (section 271(a)
    R v R (ERD), 2016 BCSC 684 (CanLII), per Beames J (section 271(a)

Principles

A sexual assault is inherently violent, having an impact on the emotional and psychological well-being of the victims.[1]

It is only in the exceptional or rare cases that a sexual assault on children involving a breach of trust should warrant a conditional sentence.[2]

Young Victims

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).

  1. ↑ R v Stuckless, 1998 CanLII 7143 (ON CA), 127 CCC (3d) 225, per Abella JA, at p. 334
    R v McCraw, 1991 CanLII 29 (SCC), [1991] 3 SCR 72, per Cory J ("Violence is inherent in the act of rape... It seems to me that to argue that a woman who has been forced to have sexual intercourse has not necessarily suffered grave and serious violence is to ignore the perspective of women.... Violence and the threat of serious bodily harm are indeed the hallmarks of rape... rape is a crime that is likely to have serious psychological consequences and may, as well, have serious physical effects...")
  2. ↑ R v MacNaughton, 1997 CanLII 960 (ON CA), [1997] OJ No 4102 (CA), per curiam, at para 7 ("In our view it should only be in rare cases that a conditional sentence be imposed in cases of breach of trust involving the sexual touching of children by adults.")

Factors

Aggravating Factors

Factors that courts can be aggravating include:[1]

  • predatory sexual behaviour
  • forcible confinement
  • age of the victim and knowledge of true age
  • degree of vulnerability of victim (inarticulate, easily manipulated, disabled)
  • relationship of trust or offender was in position of authority
  • degree of invasion of sexual integrity
  • degree of violence or force used
  • repeated acts of violence
  • whether a weapon was involved
  • manner of interference (attempted acts, kissing, touching outside of clothes, touching inside of clothes, digital penetration, oral sex, full intercourse)
  • whether there was penetration (digital or penile) / if so, whether there was risk of STDs
  • impact on the victim, family and offender
  • public abhorrence to the offence
  • attitude of the offender
  • biological or psychological factors
  • likelihood of rehabilitation
  • likelihood of reoffence
Mitigating Factors

Factors that courts can be mitigating can include:[2]

  • Age of offender
  • guilty plea (early or late, saved resources)
  • prior record (related or unrelated)
Multiple Victims

Where there are multiple victims it will be aggravating where (1) the victims were from the same family, which enhances the impact on all family members and (2) the escalating nature of the offence.[3]

Consent of Child Victim

Voluntariness of a child victim cannot be used as a mitigating factor.[4] Rather, the existence of consent can be used as an absence of a aggravating factor.[5]

  1. ↑ see R v Atkins, 1988 CanLII 201 (NL CA), 69 Nfld. & PEIR 99, per Goodridge CJ - supports some of the factors listed here
    R v HCD, 2008 NSSC 246 (CanLII), per Warner J, at para 15 - listing some of the items found below
  2. ↑ HCD, supra, at para 15
  3. ↑ R v Griffin, 2019 ABCA 46 (CanLII), per curiam
  4. ↑ R v Hann, 1992 CanLII 7133 (NL CA), 75 CCC (3d) 355, per Marshall JA
    cf. R v Allen (1989), 77 Nfld. & PEIR 138 (NLCA)(*no CanLII links)
    see also Sexual Offences (Sentencing) and Victims as a Factor in Sentencing#Victim Under 18 Years of Age
  5. ↑ R v Revet, 2010 SKCA 71 (CanLII), 256 CCC (3d) 159, per Sherstobitoff JA

Ranges

see also: Sexual Assault (Sentencing Cases)
Saskatchewan

In Saskatchewan, major sexual assaults usually begin at 3 years incarceration.[1]

Newfoundland and Labrador

In Newfoundland and Labrador, sexual assault involving full intercourse of a minor by an adult in a position of trust is usually in the range of 3 to 7 years.[2] In Alberta, the starting point for a major sexual assault upon a minor by a person in a position of trust is 4 years.[3]

Manitoba

In Manitoba, major sexual assaults committed upon teenagers by a person in a position of trust will start at 4 to 5 years.[4]

Ontario

In Ontario, cases of sexual assault involving forced intercourse with a spouse or former spouse, sentences generally range from 21 months to four years[5]

The sexual abuse of young children over a substantial period of time will result in a sentence in the mid-to-upper single digits.[6] The range may also include single instances of abuse.[7] Instances of sexual assault against a young person from a position of trust without any penetrative sexual act have a general range of 3 to 5 years.[8]

Yukon

In the Yukon, the range for non-consensual sexual intercourse while unconscious is between 12 and 30 months jail.[9] This appears to include digital penetration.[10]

Nova Scotia

Nova Scotia has rejected the use of "starting points" for ranges of sexual assault.[11]

The range of sentence for sexual offences against children is between suspended sentence and 3 years incarceration for "repeated sexual touching" by a feeble-minded, mentally ill individual, to 6 years incarceration for digital penetration or attempted intercourse over years.[12]

  1. ↑ R v Jackson, 1993 CanLII 4414 (SKCA), 87 CCC (3d) 56, per Lane JA
    R v Bird (1993), 105 Sask.R. 161(*no CanLII links)
    R v Cappo (1994), 116 Sask R 1 (*no CanLII links)
  2. ↑ R v RH, [2003] NJ No 336 (CA)(*no CanLII links)
    R v Vokey, 2000 NFCA 14 (CanLII), 564 APR 1, per Cameron JA (2:1), at para 19
    R v Freake, 2012 NLCA 10 (CanLII), 989 APR 305, per Welsh and Rowe JJA, at para 25
  3. ↑ R v BL, 2011 ABCA 375 (CanLII), 283 CCC (3d) 153, per curiam, at para 7
    R v S(WB); Powderface, 1992 CanLII 2761 (AB CA), 73 CCC (3d) 530, per curiam
  4. ↑ R v D(MF)[1991] MJ No 479 (MBCA)(*no CanLII links)
  5. ↑ R v Smith, 2011 ONCA 564 (CanLII), 274 CCC (3d) 34, per Epstein JA at 87
    R v R(BS), 2006 CanLII 29082 (ON CA), (2006), 81 OR (3d) 641, per Cronk JA
    R v Jackson2010 ONSC 3910(*no CanLII links)
    R v M(B), 2008 ONCA 645 (CanLII), 81 WCB (2d) 410, per curiam
    R v Nolan, 2009 ONCA 727 (CanLII), per curiam
    R v Toor, 2011 ONCA 114 (CanLII), 92 WCB (2d) 856, per Goudge JA
  6. ↑ R v DB, 2013 ONCA 691 (CanLII), 119 OR (3d) 16, per curiam, at para 17
  7. ↑ DB, ibid., at para 17
    R v Woodward, 2011 ONCA 610 (CanLII), 284 OAC 151 (CA), per Moldaver JA
  8. ↑ R v Medeiros, 2014 ONCA 602 (CanLII), OJ No 3859, per curiam
  9. ↑ R v Rosenthal, 2015 YKCA 1 (CanLII), per Schuler JA, at para 7
  10. ↑ Rosenthal, ibid., at para 8
  11. ↑ R v JJW, 2012 NSCA 96 (CanLII), 292 CCC (3d) 292, per Oland JA, at para 21 ("Nova Scotia has not adopted a starting point approach. Rather, this Court has chosen to remain focussed on the principles of sentencing as set out in the Criminal Code and the Supreme Court of Canada’s affirmations that the approach on review on sentencing appeals is one of deference to the decisions of the sentencing judge.")
  12. ↑ R v EMW (No.2), 2011 NSCA 87 (CanLII), 976 APR 15, per Fichaud JA
    R v GKN, 2014 NSSC 150 (CanLII), per Cacchione J, at para 43

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
Weapons Prohibition Orders s. 271 [sexual assault]
  • On conviction under s. 271 where "violence against a person was used, threatened or attempted", and was prosecuted by indictment, punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a).
DNA Orders s. 271 [sexual assault]
SOIRA Orders s. 271 [sexual assault]
  • On conviction under s. 271, 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 10 years where the offence has been "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years" (s. 490.013(2)(a))) or 20 years where the offence has a "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 5 years (if 10 year order), 10 years (if 20 year order), or 20 year (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. 271 [sexual assault]
  • If convicted under s. 271, the judge may make discretionary 161 Order.
Delayed Parole Order s. 271 [sexual assault]
  • Periods of imprisonment of 2 years or more for convictions under s. 271 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. 271 [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.

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also

References
Policy Manuals
v • e
 
Sexual Offences
Offences
Retrieved from "https://criminalnotebook.ca/index.php?title=Sexual_Assault_(Offence)&oldid=96258"