Canadian Criminal Law/Offences/Sexual Assault

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Sexual Assault
s. 271 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
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)*
Maximum 18 months jail or $5,000 fine
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)
Maximum 10 years jail
Designations
DNA primary designated offence

SOIRA designated offence

DO/LTO primary designated offence
References
Offence Elements
Sentence Principles
Sentence Digests


Legislation[edit]

Sexual assault
271. Everyone who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding 10 years and, if the complainant is under the age of 16 years, 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 not exceeding 18 months and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of 90 days.


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.


CCC

Proof of Offence[edit]

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

Interpretation[edit]

See also Canadian Criminal Law/Offences/Sexual Offences

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

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

The accused does not need to have a sexual purpose in the assault. Disciplining or humiliating a person in a sexual manner is a sexual assault.[3]

  1. R. v. Chase [1987] 2 SCR 293, 1987 CanLII 23
  2. R. v. Ewanchuk, 1999 CanLII 711, [1999] 1 S.C.R. 330, 169 D.L.R. (4th) 193
  3. R. v. V. (K.B.), [1993] 2 SCR 857 1993 CanLII 109
    R. v. Nicolaou, 2008 BCCA 300

Intent[edit]

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]

Consent[edit]

See Canadian Criminal Law/Consent (sexual offences)

Defences[edit]

Typical Motions or Orders[edit]

Witness motions[edit]

History[edit]

On August 9, 2012, s. 271 was amended to add a mandatory minimum of 90 days on summary conviction and 1 year on indictable election where the complainant is under the age of 16.

  1. R v Ewanchuk, 1999 CanLII 711 at para. 42