Criminal Code Offences
Sexual Assault
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Sexual assault is any assault with a sexual purpose. It includes anything from unwanted sexual touching to rape. A butt slap is a sexual assault. There is no requirement for penetration. The Criminal Code section for this charge is s. 271.
The defining element of the offence is the absence of consent. A person must freely and voluntarily agree to sexual activity at the time it occurs. Consent cannot be given in advance for future acts and cannot be assumed from a prior relationship or past sexual conduct. Intoxication may impair the ability to consent to sexual activity.
Sexual assault causing bodily harm (section 272) and aggravated sexual assault (section 273) are more serious variants of the offence that carry higher maximum penalties.
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Consent must be communicated through words or actions. Silence or the absence of a no is not legal consent. Consent must be ongoing and specific. This means that consent can be withdrawn at any time, and must be given for each sexual act. There is no such thing as "testing the waters" of consent in Canada. A voluntary kiss does not mean consent to breast or genital touching.
Of course, consent cannot be obtained through threats, coercion, or abuse of power. A person must also have capacity to consent: they cannot consent if they are unconscious, asleep, or extremely intoxicated.
The legal age of consent is 16. The law does allow teenagers under the age of 16 to consent if there is no relationship of trust, authority, or dependency. 14- and 15- year olds can consent to a partner less than five years older. 12- and 13-year-olds can consent to a partner less than two years older.
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To secure a conviction, the Crown must prove beyond a reasonable doubt that:
you intentionally touched the complainant with a sexual purpose;
the complainant did not consent to the touching; and
you knew the complainant did not consent, or were reckless or wilfully blind about whether consent was given.
In most modern sexual assault prosecutions, the case turns on consent and credibility of the parties. There is no limitation period for reporting a sexual offence.
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Common defences to sexual assault charges include:
Honest but mistaken belief in consent: you genuinely believed the complainant consented and took steps to ascertain consent. This defence is limited and is not available where you were reckless or wilfully blind about consent;
Consent: the complainant did, in fact, consent to the sexual activity;
Identity: you were not the person who committed the act;
False allegation: the complainant's account is not credible or is fabricated; and
Charter violations: evidence obtained through unlawful means may be excluded.
Sexual assault has become one of the most complex areas of criminal litigation. Special rules of evidence exist to protect the complainant's privacy. Pretrial motions are required in many cases. For example, if you want to rely on text messages about or related to the sexual activity, a pretrial motion is required to assess relevance to the trial and potential prejudice to the complainant. Permission from the court is also required for reliance on videos, medical or therapy records, and even family court documents.
These pretrial motions may involve a lawyer for the complainant and prolong the proceedings by months. Experienced legal representation to defend these charges is essential.
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Sexual assault is one of the most serious criminal offences in Canada. It carries penitentiary sentences for penetrative assaults, often ranging between 3 and 5 years. If you have been charged with sexual assault, obtaining experienced legal representation immediately is critical.
Sexual assault (section 271):
On summary conviction: maximum two years less a day; or
By indictment: maximum ten years (or fourteen years if the complainant is under 16).
Sexual assault causing bodily harm (section 272): maximum fourteen years.
Aggravated sexual assault (section 273): maximum life imprisonment.
A conviction for sexual assault typically also results in registration on the National Sex Offender Registry (SOIRA) for a period of ten years to life, depending on the offence. A DNA order for addition to the national databank and a weapons prohibition will also be imposed.
FAQs
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Yes. Voluntary intoxication is not a defence to sexual assault, and the complainant's intoxication may negate their ability to consent. The relevant question is whether the complainant had the capacity to consent at the time, not whether either party had been drinking. Courts assess capacity to consent based on the evidence of how intoxicated the complainant was.
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Do not contact the complainant. Do not speak to police. Preserve any evidence, including text messages, emails, and other communications that may be relevant to your defence. In some cases, video surveillance from public places like a bar may be available but should be secured quickly. Contact a criminal defence lawyer immediately. If you have children, you may also need to contact a family lawyer for advice.
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In most cases, yes. Registration on the National Sex Offender Registry was mandatory upon conviction for sexual assault until 2022. Judges now have some discretion within the law. The duration of registration depends on the specific offence and your criminal history.
Why Hire Eliany Advocates to Defend Sexual Assault Charges in Hamilton?
We combine years of experience in criminal law with a client-centered approach. We appear regularly before the Ontario Court of Justice and Superior Court of Justice in Hamilton, Burlington, and across the region. When you work with us, you benefit from the following advantages:
Proven Track Record in Criminal Defence: Geneviève Eliany has been defending criminal cases since 2013. With years of experience handling high-stakes trials, she knows how to develop a strong defence strategy.
Charter Rights Experience: We vigorously defend your rights under the Canadian Charter of Rights and Freedoms. Whether your case involves an unreasonable search, unlawful detention, racial profiling, excessive force, or other Charter violations, we will craft a strategy to make sure your rights are protected.
Thorough Approach to Case Building: We don’t just rely on the police’s version of events. We will listen to your account and investigate all angles of the case so we can tell your story at trial. This thorough preparation makes it easier to challenge the prosecution’s narrative. It’s extremely important that you tell us about potential witnesses or surveillance, and that you keep in touch with us if there are any developments you think are relevant while you wait for trial.