Canadian Criminal Law/Offences/Sexual Assault
| 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))* |
| Maximum | 18 months jail or $5,000 fine |
| Indictable Dispositions | |
| Avail. Disp. | Suspended Sentence (731(1)(a)) |
| Maximum | 10 years jail |
| Designations | |
| DNA primary designated offence DO/LTO primary designated offence | |
| References | |
| Offence Elements Sentence Principles Sentence Digests | |
Legislation[edit | edit source]
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 | edit source]
- identity of accused
- date and time of incident
- jurisdiction (incl. region and province)
- the accused assaulted the victim (e.g. non-consentual touching)
- the sexual nature of the contact;
- the absence of consent;
- the age of the complainant;
- the age of the accused;
- the relationship between the complainant and accused;
- medical evidence (if any)
Interpretation[edit | edit source]
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]
- ↑ R. v. Chase [1987] 2 SCR 293, 1987 CanLII 23
- ↑ R. v. Ewanchuk, 1999 CanLII 711, [1999] 1 S.C.R. 330, 169 D.L.R. (4th) 193
- ↑
R. v. V. (K.B.), [1993] 2 SCR 857 1993 CanLII 109
R. v. Nicolaou, 2008 BCCA 300
Intent[edit | edit source]
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 | edit source]
See Canadian Criminal Law/Consent (sexual offences)
Defences[edit | edit source]
Typical Motions or Orders[edit | edit source]
Witness motions[edit | edit source]
- Exclusion of public from court (486)
- Prohibition of self-represented accused from Cross-examining a witness under the age of 18 years (486.3)
- Sexual Offence Publication Ban (486.4)
- Publication Ban of in relation to victims, witnesses or justice system participants (486.5)
- Witness Screen (486.2)
- Testimony by Video (714.1)
History[edit | edit source]
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.
- ↑ R v Ewanchuk, 1999 CanLII 711 at para. 42