What Should I Know About a Sexual Assault Charge?
In Canada, sexual assault falls under the assault provisions of the Criminal Code (Section 265) and includes physical contact and threats:
(1) A person commits an assault when without the consent of another person, he applies for intentionally to that other person directly or indirectly; he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
In circumstances of alleged sexual assault, it is up to the police to determine whether to arrest you. The police must have reasonable and probable grounds (RPG) to do so which means that those grounds must be objectively justifiable. In other words, a reasonable person placed in the position of the police officer must be able to conclude that there were reasonable and probable grounds for the arrest.
Once you are charged, the Crown Attorney (prosecutor) then determines whether to prosecute your case on the basis of a reasonable prospect of conviction (RPC). That is to say, whether there is sufficient evidence in relation to the assault to support a finding of guilt against you. This is known as screening your charge. If there is insufficient evidence against you, the Crown Attorney may decide to drop the charge.
Case Turning Point: Consent
Most cases of sexual assault turn on the issue of consent and this question of fact and law is determined by either a judge or a jury. A person cannot give consent under duress and the Criminal Code (Section 266) lists specific instances where it is not possible to give consent:
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of the application of force to the complainant or to a person other than the complainant; threats or fear of the application of force to the complainant or to a person other than the complainant;
fraud; or the exercise of authority.
The issue of consent is further complicated when alcohol and/or drugs are involved because the question then becomes whether the complainant (victim) had the capacity to consent. Consent is also a live issue when an accused claims to have reasonably believed that the complainant consented to the sexual act (Section 266(4) of the Criminal Code). Though the question of consent is typically determined by examining the entirety of the circumstances surrounding the alleged sexual assault, some cases turn entirely on the credibility of the complainant’s testimony versus that of the accused.
Forms of Evidence
In addition to witness testimony (the complainant, accused, and any other potential participants or witnesses), additional forms of evidence in a sexual assault case include:
- Physical Evidence: To prove the identity of the accused, bodily fluids, skin/hair samples, and other DNA-related material may be used as evidence. In cases where both the complainant and accused agree that a sexual act occurred, the physical evidence is less important.
- Photographic and Video Evidence: The widespread adoption of cellular and smart phones has increased the use of digital photography and video evidence in sexual assault cases. In fact, some convictions have resulted from a video recording made by the accused of an unconscious complainant.
Until recently, an accused was permitted to use the sexual history of a complainant as a defence to the sexual assault charge; the idea being that if a complainant had a promiscuous past or had previously consented to sexual acts with the accused, then it was likely that the complainant consented to the alleged sexual assault. Fortunately, the Criminal Code was revised such that testimony related to prior sexual history is strictly forbidden – this revision is commonly known as the rape shield law (Section 276). However, a narrow exception to this law exists and evidence of prior sexual behaviour is permitted if all three of the following criteria are met under Section 276(2) of the Criminal Code:
(2) In proceedings in respect of an offence referred to in subsection (1) [sexual assault], no evidence shall be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other that the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.1 and 276.2, that the evidence is of specific instances of sexual activity;
is relevant to an issue at trial; and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
If convicted of sexual assault, the sentencing of an accused will depend on a number of factors:
- The severity of the circumstances surrounding the sexual assault
- Whether the accused has prior criminal convictions
- The nature and severity of an accused’s past criminal convictions
A sexual assault charge may be prosecuted by way of summary conviction (minor offence) or indictment (serious offence). If the Crown Attorney proceeds summarily, and you are convicted, then you may face up to 18 months in prison (note that you cannot be fingerprinted for a summary conviction offence). If the Crown Attorney proceeds by way of indictment, and you are convicted, then you may be imprisoned for up to 10 years.
In cases of aggravated sexual assault (an accused wounds, maims, disfigures, or endangers the life of the complainant), the Crown Attorney can only prosecute by way of indictment. The penalties for aggravated assault are severe: a minimum of 4 years in prison (where a firearm is used) and a maximum of life imprisonment.
The criminal justice system is a complicated and intimidating landscape; particularly, when your liberty is in jeopardy. Jeff Mazin knows the lay of the land and is here to help you navigate your way to the best possible outcome. If you have a question or need assistance, reach out and book a free consultation.