INTRODUCTION AND BRIEF DESCRIPTION
An analysis of section 271 of the Criminal Code of Canada which sets out the offence of 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.
Section 271 of the Criminal Code sets out the offence of sexual assault. This offence replaced the more stringent offence of "rape" which no longer appears in Canada's Code. Sexual assault, is defined broadly as any assault (as defined in section 265 of the Code) that transpires in circumstances of a sexual nature. Unfortunately, due to the broad drafting of section 271, there is little way to distinguish an outright rape from a mere transient touching when a 271 appears on an accused's record. More specific sexual offence do exist within the Code, for example at sections 151, 152 and 153. Recently, parliament enacted mandatory minimums where a victim is under the age of 16.
The offence of sexual assault captures an extremely wide range of behaviour. Any physical application of force that is not consensual, and is done in circumstances of a sexual nature, can constitute a sexual assault. Examples include anything from slapping someone on the buttocks at a bar, all the way to an outright rape. Cases often arise where intoxication of the complainant and accused is at issue. Intoxication can vitiate a person's consent if sufficient, however intoxication cannot absolve a person of criminal responsibility unless they were drunk to the point of automatism. These defences are extremely nuanced and complicated. If you find yourself accused of this crime, you should contact a criminal defence lawyer immediately.
Most sexual assault prosecutions are built upon the testimony of one person. Accordingly, details relating to the offence can be crucial in mounting a defence. However, it is not uncommon for the Crown to join multiple complainants together onto one prosecution. Thus, although each count must be determined on its own merit, the practical effect of this is to turn the matter from a he-said-she-said into a he-said-they-said, making defending the charges all but impossible. Often, the Crown will attempt a similar fact application, where the accused's modus operandi is used to bolster the Crown case as quasi-corroborate evidence.
In more basic cases, a charge of sexual assault is defended by raising a reasonable doubt that there was in fact consent, or alternatively, in the absent of consent, the accused can demonstrate that there was an honest but mistaken belief in consent. These defences are highly nuanced and fact specific.
QUESTIONS AND ANSWERS
|Q.||Is there a mandatory minimum punishment for sexual assault?
||A.||The punishment for sexual assault is set out within this section. As of 2015, mandatory minimum sentences may apply, if the complainant is under the age of 16 years. If the Crown proceeds by way of indictment and the complainant is under the age of 16, then a mandatory minimum of one year applies. If the Crown proceeds by way of summary conviction, then a mandatory minimum punishment of six months applies.
|Q.||Can a sexual assault case be prosecuted without evidence?
||A.||This is a question that arises often. However, it is a misinformed question. It depends on what a person means by "evidence". Most sexual assault cases are prosecuted through witness testimony. That is, a person, coming to court, and recounting the events that took place. This is known as viva voce evidence. In these types of cases, there is no forensic evidence, no DNA, no cameras, or other extraneous evidence. Just witness testimony. Thus, in this sense, a sexual assault case can be prosecuted without "evidence", however, from a legal standpoint, witness testimony is indeed evidence.
|Q.||How does the court determine a he-said-she-said?
||A.||Most sexual assault cases are prosecuted and defended on a he-said-she-said basis. Courts are well equipped to assess viva voce evidence. In fact, it is one of the main functions of the judicial system. A person's evidence is analysed for it's reliability, and a it is judge based on a person's credibility. Evidence may be credible, but not reliable - consider a witness recounting an event from 10 years ago. They may perhaps be honest, but they may not be reliable due to memory lapses. Similarly, a person may be lying, and thus not credible, however, elements of their evidence may still be accurate. Ultimately, in Canada, the burden rests with the Crown to prove the offence beyond a reasonable doubt. Still, neither the evidence of the accused nor the complainant are held to any higher or lower standard.
VIDEOS AND MEDIA
|R v S. (P.L.)||A teacher was accused of sexually assaulting seven young male students. He was found to have touched two of the complainants on their genitals, while the other five were touched on the thighs. It was found that the two instances of penile touching do not automatically make the other five sexual assault, it can be used to assist in proving the sexual nature of the other instances.
|R. v. Bernier||The accused was a nursing assistant in a home for persons with disabilities. He was charged with sexual assault after repeated instances of touching the breasts and testicles of those in the home for the purpose of joking with the other employees. No sexual gratification was alleged. The accused was found guilty due to the nature of the touching and the lack of consent from the victims.
|R. v. Chase||Sexual Assault appeal in which an accused was charged with common assault after groping a young girls breasts. The trial Judge limited the scope of sexual assault to the uninvited touching of genitals, however the Supreme Court of Canada found that anything that violates the sexual integrity of the victim will be found to be sexual assault. The common assault conviction was upgraded to a sexual assault.
|R. v. J. (C.)||Father was accused of groping step-daughter, the complainant, in her teenage years while they would engage in play-fighting, which had been an accepted part of their relationship since her childhood. It could not be proven that the accused committed these acts for the purposes of sexual gratification, but instead were seen to be coincidental contact during an accepted activity. The accused received an acquittal upon appeal.
|R. v. V. (K.B.)||Father accused of sexual assault after grabbing young sons genitals. Father insists that his actions were for disciplinary purposes after his son had been performing a similar act on his friends. Father insists he is guilty of common assault but not sexual assault because no sexual gratification existed. Appeal court found that sexual gratification is not a requirement for sexual assault, and that the mere act presented a violation of the childs sexual integrity. The conviction was upheld.
|offences against children|