Types of Sexual Assault Charges in Ontario
The Criminal Code of Canada defines sexual assault based on three main elements. First, the assailant applies intentional force on the victim. Second, they apply this force without the victim’s consent. Third, they apply this force in a sexual context. The third element is what separates sexual assault from simple assault.
The Criminal Code further categorizes sexual assault charges based on other factors. The age of the victim has a dramatic effect on sentencing due to the age of consent in Canada. Other factors may include the severity of the injuries and whether a weapon was involved. Penalties for some sexual crimes increase after the first offence. Notably, someone may also be charged with a sexual assault crime even if there was no physical touch.
Common Sexual Assault
Section 271 of the Criminal Code describes common sexual assault. The victim’s sexual integrity is violated, but they do not sustain any major physical injuries. This is the most common sexual assault charge in Canada. Consent plays a critical role in common sexual assault charges. If two adults knowingly consent to the specific act in question, this is not sexual assault.
If the court proceeds with a summary conviction sexual assault, the defendant faces:
- Up to 18 months in prison if the victim is at least 16 years of age
- At least six months and up to two years less a day in prison if the victim is under 16 years old
If the defendant is charged with an indictable offence, they face:
- Up to ten years in prison if the victim is at least 16 years of age
- Between one and 14 years in prison if the victim is under 16 years old
Sexual assault cases that escalate to an indictable offence may move up to Superior Court from the Ontario Court of Justice. This typically prolongs court proceedings and complicates the case further.
Sexual Assault Causing Bodily Harm
One step up from common sexual assault is sexual assault causing bodily harm. It may result in life in prison if the crime involves a minor. Section 272 of the Criminal Code also includes sexual assault with a weapon or involving threats to a third party. The statute describes this charge as sexual assault that “carries, uses, or threatens to use a weapon or an imitation of a weapon.” The victim’s age, repeat offences, and the nature of the weapon affect possible sentencing.
Mandatory minimum and possible maximum sentences under Section 272 include:
- With a restricted or prohibited firearm, up to 14 years in prison with a minimum of five years for the first offence and seven years for subsequent offences
- With any firearm and relating to a criminal organization, up to a maximum of 14 years in prison, with a minimum of five years for the first offence and seven years for subsequent offences
- With a non-restricted firearm, up to 14 years in prison with a minimum of four years in prison
- If the victim is under 16 years of age, a maximum sentence of life in prison with a minimum of at least five years in prison
Aggravated Sexual Assault
The Criminal Code outlines aggravated sexual assault in Section 273. This is similar to sexual assault causing bodily harm. The main difference is that the victim sustains severe injuries. The law specifies this is when the assailant “wounds, maims, disfigures, or endangers the life of the complainant.”
All cases of aggravated sexual assault carry a maximum sentence of life imprisonment. Minimum sentencing breaks down in a similar manner as sexual assault causing bodily harm.
- With a restricted or prohibited firearm, a minimum of five years in prison for a first offence and at least seven years for a second offence
- With any firearm and relating to a criminal organization, at least five years in prison for a first offence and at least seven years for a second offence
- With a non-restricted firearm, a minimum of at least four years in prison
- If the victim is under 16 years of age, a minimum of age least five years in prison
The next three types of sexual assault all involve minors. None of them have a maximum sentence of life in prison. But, a person may be charged with one of these crimes, plus one of the crimes listed above.
Section 151 of the Criminal Code describes sexual interference. This involves touching any part of the body of a person under 16 for a sexual purpose. The touch can be direct or indirect, as with an object.
- A summary conviction offence has a mandatory minimum sentence of 90 days in prison. The maximum sentence is up to 2 years less a day in prison.
- An indictable offence has a mandatory minimum of one year in prison. The maximum is up to 14 years in prison.
Invitation to Sexual Touching
Whereas sexual interference refers to touching a minor, invitation to sexual touching is the reverse. It is inviting, inciting, or counseling a person under 16 to touch the defendant for a sexual purpose. Again, the touching may be direct or indirect. Section 152 of the Criminal Code also includes inviting two people under 16 to touch each other for a sexual purpose.
Sentencing is mostly the same as with sexual interference.
- A summary conviction offence has a mandatory minimum sentence of 90 days in prison. The maximum sentence increases to two years less a day.
- An indictable offence is punishable by between one and 14 years of imprisonment.
Sexual exploitation refers specifically to crimes committed against minors between 16 and 18 years of age. Defined by Section 153 of the Criminal Code sexual exploitation applies to assailants who are in positions of trust or authority relative to the victims. They exploit this relationship to engage in sexual interference or invitation to sexual touching. The power imbalance is a critical element. An example would be a high school teacher who is having sexual relations with their 16 or 17 year old student.
Minimum and maximum sentences for sexual exploitation are as follows:
- A summary conviction offence carries a minimum sentence of 90 days in prison, up to a maximum of two years less a day.
- An indictable offence carries a minimum sentence of one year in prison up to a maximum of 14 years.
Other Impacts of a Sexual Assault Conviction
Possible prison time is not the only consequence of a sexual assault conviction. It can result in many restrictions that can severely impact a person’s way of life. This can have irreversible effects on personal relationships and a person’s livelihood. Examples include the following:
- Time away from family and loved ones
- Stigma of a sexual assault conviction
- Permanent criminal record, affecting employment opportunities
- Mandatory enrollment in Ontario’s and Canada’s sex offender registries
- Ongoing obligations as a result of the sex offender registry
- Impacts on immigration and citizenship
- Restrictions on international travel, including to or through the United States
- Unable to work or volunteer around vulnerable people, including children
- Effects on where you are allowed to live or participate in the community
- Order to provide DNA samples to a national data bank
- Prohibited from owning guns and other weapons
Defending Against an Ontario Sexual Assault Charge
With the possibility of life in prison, you should not take a sexual assault charge lightly. Even if the charge appears minor, it could have a wide-reaching effect on your daily life. It is vital to defend yourself against sexual assault charges with everything you have. This is also why it is critical to hire a skilled criminal defence lawyer in Ontario to help your case.
They can assess your situation and formulate the strongest defence possible.
- This may involve scrutinizing the evidence to see if any Charter rights were violated.
- It could look into reasonable beliefs regarding the age of the alleged victim.
- Another defence strategy may question the issue of consent. The complainant may have consented to the sexual activity, or the accused may have had a reasonable belief the victim consented to the act.
- Sexual intent is a major factor too. Even if the charge is reduced from sexual assault to standard assault, potential penalties will be significantly educed. The touching may also have been purely accidental which would lead to an acquittal.
- A lawyer can potentially sow the seeds of reasonable doubt that no sexual act took place. They can challenge the credibility of evidence and testimony, and establish the complainant had a motive to lie.
Other options may explore the possibility of a peace bond coupled with a withdrawal of the criminal charges, or negotiating a conditional discharge to avoid a criminal record. Kruse Law has the experience and expertise to build a strong defence strategy. Before you resign to pleading guilty to the charge or making the serious mistake of trying to represent yourself at trial, seek the legal advice of a skilled sexual assault defence lawyer. Even if you are found guilty, your lawyer can successfuly advocate for a lighter sentence based on the specifics of your case. Get the strong legal representation you need for the best possible outcome.