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The Process of Establishing Sexual Assault in Canada

Posted by Kruse Law on October 09, 2018


In addition to dealing with the physical and emotional distress of sexual assault, victims must also make the difficult decision whether or not to press charges against their assailant. Those who are sexually assaulted grapple with this choice every year. A graphic released by SACHA, a non-profit organization located in Hamilton, Ontario, showed that over 400,000 sexual assaults occur in Canada annually. From that number, only 5% report the crime to the police. In doing so, the victim can make a very private matter quite public.

In reality, the choice of pressing charges is not up to the victim. Once the victim reports a sexual assault to the police, the decision whether to lay a charge is made by the police.   Once the charge has been laid by the police, the crown attorney (i.e. the prosecution office located in each county in Ontario) assumes complete carriage of the file and makes all decisions regarding whether the crown will continue with the prosecution based on whether there is a “reasonable prospect of conviction.”  The crown attorney will often consult with the victim regarding whether their case will proceed to trial, be resolved by way of a guilty plea or whether it will be withdrawn. However, technically all decision making power rests with the prosecutor and not the victim.  In Canada, the victim is considered to be a witness who can provide evidence and testimony in regard to the crime and is not a decision maker regarding how the matter will be prosecuted in court.

If you are facing sexual assault charges or other sexually related criminal charges, you are potentially facing stigma in the community, loss of reputation and employment and a lengthy jail term.    You will want to retain a top sexual assault lawyer   to be at your side and provide a strong defence.

Determining if the Definition of Sexual Assault can be Applied

Under Canada’s Criminal Code, there is no specific or detailed provision for rape. As an alternative, the Code has a clear definition of assault and offers a precise punishment for sexual assault. Section 265 establishes an assault occurs when:

  • An individual intentionally applies force, directly or indirectly, to another person without their consent;
  • Using gestures or acts, an individual threatens or attempts to apply force to another individual causing the victim to reasonably believe they are being assaulted; or
  • An individual accosts or impedes another person while visibly wearing or carrying a weapon

In R. v. Chase [1987] 2 S.C.R. 293, the Supreme Court of Canada defined sexual assault as an assault within any of the definitions of s. 265(1), which is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated.    A judge or jury must determine whether in the light of all the circumstances the sexual or carnal context of the assault is visible to a reasonable observer.  The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats, which may or may not be accompanied by force, will be relevant.  For example, if man intentionally touches a woman’s buttocks with his hand in a bar without her consent and makes a sexual comment while doing so, this is clearly a sexual assault. Most cases such as an intentional touching of a woman’s breast or rape are obvious, while other forms of sexual assault such as a momentary touching of a person’s leg are subtler and may or may not constitute a sexual assault depending on the circumstances Each fact situation needs to be carefully analyzed in the context of the test in R. v. Chase to determine whether a sexual assault has taken place. 

As you can see, even a threat of sexual assault can be considered as a sexual assault itself.  Under the Criminal Code, a person could potentially be charged and convicted of sexual assault without laying a hand on the victim if threats are made causing the victim to believe that they are about to be sexually assaulted.

Ascertaining Consent

Usually the central matter in determining whether a sexual assault has taken place is whether the alleged victim consented.  Consent is a matter of fact, not opinion, in the eyes of Canadian courts. The crown must prove beyond a reasonable doubt that the complainant did not consent to the sexual activity. The meaning of consent is set out in s. 273.1(1) of the Criminal Code.  Consent means the voluntary agreement of the complainant to engage in the sexual activity in question.  A person may give their consent to sexual activity by their words or conduct or a combination of both.   Consent does not exist if:

  • Force is applied to the victim;
  • The agreement is expressed by words or conduct of a person other than the complainant;
  • The complainant is incapable of consenting to the activity (for example, where they are too drunk to consent, asleep or unconscious);
  • The accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
  • The complainant expresses, by words or conduct, a lack of agreement to engage in the activity;
  • Fear of the exertion of force or threats are used to coerce the victim;
  • Fraud is present; or  
  • The complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity

The consumption of alcohol or drugs by either the accused or the complainant can make a complicated matter even more complex. For example, a drunken consent is still a consent as long as the complainant still has capacity to consent. However, at some point along the continuum of alcohol or drug intoxication, a complainant clearly lacks the capacity to consent.   The difficult question that judges and juries often grapple with is at what point does a drunken or drug-impaired complainant lack the capacity to consent?

Sentencing in a Sexual Assault Case

After it is determined the definition of sexual assault applies and it is determined beyond a reasonable doubt by a judge or jury that consent was not given, the accused is sentenced. The severity of the punishment depends on the circumstances of the case and the criminal history of the accused.   For example, a first time offender in Canada who commits a date rape where no injuries occur and assuming there are no other aggravated facts, would likely face a jail term in the range of 2-3 years depending upon the facts of a particular case and the accused’s background.

If the victim is physically disfigured, wounded, maimed, or their life has been endangered, this is considered an aggravated sexual assault and the penalties are more severe. Also, if a firearm is involved, the length of a jail term escalates further.

Fight Against Charges of Sexual Assault. Hire an Experienced Criminal Defence Lawyer Today

If you are under investigation, arrested or charged in a case  involves allegations of  sexual assault or other sexually related crimes, the lawyers at Kruse Law can help. We will quickly assess your case and map out a plan of action to help you either win your case or reach the most favorable outcome possible.

The stakes involved in a case of sexual assault are very high.  In almost all cases, except the most minor sexual assault, an accused is facing serious prison time unless they are found not guilty.  You need to work with a skilled and experienced criminal lawyer who is prepared to do whatever it takes to win your case within rules of the Canadian Court system and the ethical bounds of the Law Society. To schedule a free consultation, click here or call toll free   1-800-699-0806  to learn how our firm will fight for you.  

Posted under Sexual Assault