DOMESTIC & SEXUAL ASSAULT

The criminal code does not provide a specific definition for sexual assault. Simply put, a sexual assault is an assault with a sexual element, and so the definition of an assault applies:

s. 265(1) A person commits an assault when

  1. without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
  2. he attempts or threatens, by an act or a 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
  3. 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.

The definition for assault, described above, applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third-party, assault causing bodily harm, and aggravated sexual assault. It is important to note that the definition of assault seems to include threats to commit sexual assault. This means that you may be charged with a sexual assault even without any physical contact.

Aggravated sexual assault is a sexual assault during which a person wounds, maims, disfigures, or endangers the life of a person.

Sexual interference

s. 151 Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years.

The Criminal Code of Canada provides the definition and punishment for sexual interference which, simply put, is the touching of a sexual nature of a person under the age of 16 years old. You can also be found guilty of sexual interference for having touched a person under the age of 16 with an object. The Crown must prove, beyond a reasonable doubt, that touching occurred, that the victim is under the age of 16 years old, and that the touching was for a sexual purpose. A charge for sexual interference is often laid with other charges such as invitation to sexual touching and sexual assault. There are numerous defences to these types of allegations and an experience criminal defence lawyer can assist you in finding the best possible defence for your case.

For summary convictions, the minimum sentence for sexual interference is 90 days in prison and the maximum sentence in two years less a day in prison. For indictable offences, the minimum sentence for sexual interference is one-year imprisonment and the maximum sentence is 14 years imprisonment.

There may be additional consequences, on top of a jail sentence, such as a SOIRA order, an order to remain away from places where children may be present (schools, parks, public pools). Please see the section “Other Penalties: sex offender registry” for additional information on SOIRA orders. These consequences may seriously impede your freedom. Ms. Gavran can ensure that your legal rights are protected and can advise you what options are available to you. To discuss your charges and book an appointment call us at (647) 624-6324.

Sentence

Sexual assault

s. 271 Every one who commits a sexual assault is guilty of

  1. […] imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
  2. […] imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

A person who has been convicted of sexual assault may be imprisoned for a maximum of 14 years. If the victim is under 16 years old, the minimum sentence is 6 months for prosecutions by summary conviction, or if the Crown prosecutes by way of indictment, the minimum sentence is one-year imprisonment. This means that the courts must impose a minimum of 6 months jail for anyone found guilty of sexual assault against a person under the age of 16. If you are found guilty of sexual assault, you will also be subject to a SOIRA order. Please see the section “Other Penalties: sex offender registry” for additional information on SOIRA orders.

The sentence can vary widely depending on the circumstances surrounding the offence such as the gravity of the sexual assault, the age of the victim, or whether the person accused was in a position of power (parent, guardian, teacher, etc.). A criminal defence lawyer can help you ascertain the possible range of sentence according to your charge(s).

Sexual Assault with a Weapon, Threats to a Third Party or Causing Bodily Harm

(2) […] is guilty of an indictable offence and liable

  1. (a) […] imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of
    • (i) in the case of a first offence, five years, and
    • (ii) in the case of a second or subsequent offence, seven years;
  2. if the complainant is under the age of 16 years, to imprisonment for life and to a minimum punishment of imprisonment for a term of five years; and
  3. (d) in any other case, to imprisonment for a term not exceeding fourteen years.
    Aggravated Sexual Assault

(2) Every person who commits an aggravated sexual assault is guilty of an indictable offence and liable

  1. […]to imprisonment for life and to a minimum punishment of imprisonment for a term of
    • (i) in the case of a first offence, five years, and
    • (ii) in the case of a second or subsequent offence, seven years;
  2. in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
  3. if the complainant is under the age of 16 years, to imprisonment for life and to a minimum punishment of imprisonment for a term of five years; and
  4. in any other case, to imprisonment for life.

Both sexual assault with a weapon, causing bodily harm, or threats to a third-party and aggravated sexual assault are very serious charges and therefore, have the potential for serious, life-altering consequences.

Depending on the circumstances of the offence that led to a finding of guilt, the sentence can be up to 14 years in prison for sexual assault with a weapon, causing bodily harm, or threats to a third-party. A finding of guilt for aggravated sexual assault can carry a sentence of life in prison. If the offence was done for a criminal organisation there is a minimum sentence that a judge must impose upon a guilty verdict. For both offences, the minimum sentence is 5 years, in the event of a first conviction. There is also a minimum sentence when the victim is under the age of 16.

Many factors come into play at sentencing such as the circumstances surrounding the offence, the circumstances of the victim, the criminal history of the accused, etc. These factors will help determine the range of sentence that may apply to your case. An experience criminal defence lawyer can assist you in your defence. To book an appointment with Ms. Gavran, call us at (647) 624-6324.

Other Penalties: Sex Offender Registry

Offences such as invitation to sexual touching, sexual interference, sexual exploitation, incest, child pornography, as well as sexual assault, aggravated sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm are considered “designated offences” under section 490.011(1) and the Sex Offender Information Registration Act (“SOIRA”) applies.

SOIRA orders must be made by the Court against the person who is ultimately convicted, pleads guilty to a designated offence, or is found not criminally responsible because of a mental disorder. These Orders appear in the RCMP-maintained database called the “National Sex Offender Registry” which is accessible by all accredited Canadian police agencies. Information that is collected and contained in the database is the:

  • name, date of birth and current address;
  • current photograph and identifying marks;
  • vehicle information and driver’s license;
  • employment information and address;
  • passport information; and
  • sex offence(s) for which the person has been convicted.

The duration of the SOIRA order can be either for 10 or 20 years, but can also be a lifetime order if the maximum punishment for the offence is life imprisonment.