Sexual assault cases can be emotionally draining and complicated. Also, the minimum sentence for sexual assault in Canada ranges widely depending on the nature and extent of the crime. Here we’ll look at “simple sexual assault” AKA “sexual assault simpliciter” and discuss minimum and maximum sentencing trends.
Type of Sexual Assault You Are Charged With
The most crucial factor in a sexual assault case is the type of assault charge involved. Such a determination will influence the minimum possible sentence.
For example, some crimes are considered sexual but do not fall under the definition of sexual assault. An invitation to touching would be a sexual crime, but not technically assault. In contrast, some crimes—like “sexual assault causing bodily harm” or “aggravated sexual assault”—carry a higher minimum sentence for sexual assault in Canada.
Factors Affecting the Severity of the Sentence
The minimum sentence for sexual assault in Canada varies based on how severe the case is. Both aggravating and mitigating factors come into play.
Aggravating Factors that Influence Sexual Assault Cases
Aggravating factors enhance a charge of sexual assault, potentially increasing the minimum sentence for the sexual assault charge. Aggravating factors include:
- Predatory sexual behaviour
- Forcible confinement
- Age of the victim and knowledge of true age
- Degree of vulnerability of the victim (inarticulate, easily manipulated, disabled)
- Relationship of trust or offender was in a 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), and 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 repeat offence
Mitigating Factors that Affect Sexual Assault Cases
Mitigating factors are extenuating circumstances surrounding the assault case. These factors can lead to a reduced charge or a lesser sentence in some cases.
- Age of offender
- Guilty plea (early or late, saved resources)
- Prior record (related or unrelated)
Mandatory Minimum Sentence
The law dictates compulsory minimum sentences, and judges cannot violate them.
What is the Mandatory Minimum Sentence in Canada?
The minimum sentence for sexual assault in Canada is the minimum penalty a judge must issue upon conviction. Judges can, however, deliver sentences that are higher than the minimum.
Sexual Assault with a Victim Younger Than 16
Mandatory sentencing for sexual assault depends primarily on the victim’s age. Other factors influence the outcome, too—for example, how the Crown Attorney decides to prosecute the case. Proceeding by indictment happens with more serious offences while summary conviction handles less severe situations—and processes them faster.
For example, if a victim is younger than 16 years old, and the Crown Attorney is pursuing the case by indictment, the mandatory sentence is one year in jail. The maximum allowable punishment is 14 years in jail.
If the Crown Attorney pursues conviction, the minimum sentence for sexual assault is six months in jail. The maximum allowable sentence is two years, minus one day.
Sexual Assault with a Victim Older Than 16
If a victim is older than 16 years old at the time of the crime, there is no mandatory minimum sentence. A maximum does exist: ten years for an indictment and 18 months for summary conviction.
What is a Discharge?
Discharge means that there is no formal conviction. However, there are two types of release.
An absolute discharge occurs when a person is free to go and does not have a criminal record. One year following the release, all records of the discharge disappear.
In cases where the judge finds the accused guilty but does not convict them, conditional discharge applies. Conditional discharge involves the condition of probation, which requires the convicted party to fulfill specific duties and follow set guidelines for behaviour and movement.
National Sex Offender Registry
The topic of the National Sex Offender Registry often comes up regarding convictions and sexual assault sentences in Canada.
What is the National Sex Offender Registry?
All people who receive a conviction of sexual assault have their name added to the National Sex Offender Registry. The Registry lists the person’s address, phone number, and vehicle information. People on the Registry must inform the police of their travel plans as well.
The length of time a person is on the Registry varies by case. Conviction via indictment means an offender remains on the Registry for 20 years. Summary conviction cases involve Registry enrollment for ten years.
Getting Taken Off the Registry
People on the Sex Offender Registry can petition for removal before the order ends. Timelines for application vary; if the order is for ten years, you can apply after five. In 20-year orders, ten years must pass before you may apply. And if the order is for life, 20 years must pass before an application is valid. Plus, the court may deny the request.
Other Types of Sexual Assault
Other types of sexual assault can result in more severe sentencing. For more details on how sentencing works, see the sentencing FAQ page.
Sexual Assault Causing Bodily Harm
Sexual assault causing bodily harm is a severe charge resulting from injury to the victim during the crime. The maximum sentence is 14 years in jail unless a gun is involved.
A “restricted” or “prohibited” firearm automatically results in a minimum sentence of five years in jail. Any other type of gun equals a mandatory four-year minimum sentence. Also, if the victim is under 16, the minimum punishment is five years of jail time.
Aggravated Sexual Assault
If a victim sustains an injury, the case typically converts to sexual assault causing bodily harm. However, more severe injuries may result in the perpetrator receiving aggravated sexual assault charges. This charge usually involves cases with permanently injured, disfigured, or endangered victims.
Minimum sentences for aggravated sexual assault follow the same guideline as sexual assault causing bodily harm, except that the maximum for aggravated is life in jail.
Judges may add further orders to a conviction, even in cases of conditional discharge, which includes the probationary period. Often, these orders are part of probation.
- Not Being Allowed Near Children
- No Internet Access
- No Weapons
- No alcohol or drugs (if the charge involves their use)
- Treatment or Counselling
Alleged perpetrators of sexual assault can face minimum sentences ranging from no jail time to life in prison. Overall, the factors that affect sentencing include injury to the victim, use of a firearm in the assault, and the age of the victim.
Sexual assault, victim younger than 16, indictment
Sexual assault, victim younger than 16, summary conviction
Two years, minus one day
Sexual assault, victim older than 16, indictment
Sexual assault, victim older than 16, summary conviction
Sexual assault causing bodily harm, no firearm
Sexual assault causing bodily harm, restricted or prohibited firearm
Sexual assault causing bodily harm, restricted or prohibited firearm, repeat offence
Sexual assault causing bodily harm, possession of other firearm
Sexual assault causing bodily harm, victim younger than 16 years old
Aggravated sexual assault, restricted or prohibited firearm
Life in jail
Aggravated sexual assault, possession of other firearm
Life in jail
Assault cases can be complex, which is why having a strong legal team on your side is essential. If you need help fighting a sexual assault case, contact a knowledgeable attorney for assistance today.