Sexual Assault & Sexual Offences

HOW DOES A PERSON GET CONVICTED OF SEXUAL ASSAULT?

In order for a person to be convicted of sexual assault, the Crown Prosecutor must prove that the complainant did not consent to the sexual contact. The person must be capable of consenting to the sexual contact, and the consent must be freely given. For example, a person who is too intoxicated to give their consent has not, in law, truly consented.

WHAT ABOUT “MISTAKEN BELIEF IN CONSENT”?

If the complainant did not give their consent to the sexual contact, an honest but mistaken belief in consent may still be a defence. This “mistaken belief in consent” defence is carefully limited and heavily restricted, however. There is no such thing as “implied consent” in Canadian law – consent to sexual contact must have been communicated to the accused, through the other person’s words or behaviour. And a person cannot rely on a mistaken belief in consent unless they took all reasonable steps, in the circumstances known to them at the time, to find out whether the other person was consenting to the sexual contact.

WHAT ARE THE POSSIBLE PENALTIES FOR SEXUAL ASSAULT?

Because the crime of sexual assault covers such a wide range of acts, the possible penalties for a conviction for sexual assault range from probation all the way up to a lengthy jail term. The maximum penalty for a sexual assault is ten years in jail, while the maximum penalty for aggravated sexual assault is life in prison.

How do sexual assault penalties work in Alberta?

In Alberta, our Court of Appeal has set a “starting point” sentence for a “major” sexual assault. A sexual assault is a “major” sexual assault when a reasonable person could foresee that the assault is likely to cause serious psychological or emotional harm. Sex acts such as penile-vaginal penetration are generally considered to constitute a major sexual assault.

What is the minimum penalty for a major sexual assault in Alberta?

The starting point sentence for a major sexual assault for an adult first-time offender with no criminal record is three years in jail. Likewise, the starting point sentence for a major sexual assault committed by someone in a position of trust or authority against a child is four years in jail.

Because this is simply a starting point for judges to consider when sentencing someone, the sentence can be increased or reduced if there are aggravating or mitigating factors. In general, however, a conviction for a major sexual assault will nearly always attract a lengthy jail sentence. For less serious offences which do not fall into the category of a “major” sexual assault jail still remains a real possibility in most cases.

BESIDES SEXUAL ASSAULT, WHAT OTHER SEXUAL OFFENCES ARE IN THE CRIMINAL CODE?

In addition to sexual assault, the Criminal Code creates a number of other sexual offences, such as:

• Sexual Interference & Invitation to Sexual Touching: The offence of sexual interference makes it a criminal offence to touch a person under age 16 for a sexual purpose, with either your body or an object. The offence of invitation to sexual touching makes it a criminal offence to encourage someone under age 16 to touch another person’s body for a sexual purpose, with either the young person’s body or an object. (Criminal Code sections 151 and 152)
• Sexual Exploitation of a Minor or a Person with a Disability: If a person is under age 18, it is against the law for another person to have (or encourage) certain kinds of sexual contact with that person when (a) the other person is in a position of trust or authority, (b) the person is in a relationship of dependency, or (c) the relationship is exploitative. Likewise, if a person is in a position of trust or authority towards someone with a physical or mental disability, or if the person with a disability is in a relationship of dependency with the other person, there are circumstances where it is against the law to encourage the person with a disability to have sexual contact without their consent. (Criminal Code sections 153 and 153.1)
• Incest and Bestiality: It is against the law to have sexual intercourse with someone who you know is, by a blood relationship, your parent, child, brother, sister, half-brother, half-sister, grandparent, or grandchild. It is also against the law to have sex with an animal.  (Criminal Code sections 155 and 160)
• Voyeurism: In certain circumstances where a person has a reasonable expectation of privacy, it is against the law to surreptitiously observe or record that person, either in person, or with an electronic device such as a video camera. Some (but not all) of the circumstances where this hidden or clandestine recording will be against the law include: (a) where the person being recorded is reasonably expected to be nude or engaged in sexual activity, or (b) where the observation or recording is made for a sexual purpose. (Criminal Code section 162)
• Child Pornography: It is against the law to make, distribute, possess, or access child pornography. Child pornography has a broad definition, but it includes (among other things) video or photographic representations of a person under age 18 engaged in explicit sexual activity, and videos or photographs that have the dominant characteristic of depicting, for a sexual purpose, the sexual organ or anal region of a person under age 18. (Criminal Code section 163.1)
• Luring: It is against the law to use a computer system to communicate with a person who is under 18 years old for the purpose of facilitating certain sexual offences. This offence criminalizes using the Internet to communicate with under-age persons for the purpose of engaging in what would be illegal sex acts, e.g., using the Internet to ask a person under the legal age of consent to meet to have sex. (Criminal Code section 172.1)
• Indecent Acts: It is against the law to perform an “indecent act” in a public place in the presence of another person. Sex acts, such as masturbation, can fall under the definition of an “indecent act.” It is also against the law to expose your genitals to a person under age 16 for a sexual purpose. (Criminal Code section 173)

Many of these sexual offences come with mandatory minimum jail sentences upon conviction, and mandatory orders that a person be listed on the Sex Offenders Registry.

WHAT IS THE SEX OFFENDERS REGISTRY?

The Canadian government has established a Sex Offenders Registry to track and monitor persons who have been convicted of sexual offences. The Sex Offenders Registry is not public information, and the names and addresses of persons on the registry are not made public. The Registry is used by police officers and certain other organizations to track sex offenders and investigate sexual offences.

The Sex Offender Information Registration Act (SOIRA) requires a person on the Sex Offenders Registry to register every year, and to provide the police with certain information, including their addresses, where they are employed, volunteering, or going to school, and any licence plate numbers and descriptions of the vehicles that they use. Persons on the Sex Offender Registry must also notify the police if they expect to be away from one of their registered residences for more than seven days.

HOW IS A PERSON ADDED TO THE SEX OFFENDERS REGISTRY?

If a person is convicted of certain sex offences, a judge is required to order that a person be added to the Sex Offenders Registry. For some offences, the judge only has to make the order if the prosecutor asks that the person be added to the Sex Offenders Registry, but in other cases, the judge has no discretion and must make the order. Examples of offences where a judge must make a Sex Offenders Registry order include sexual assault, sexual interference, and child pornography offences.

HOW LONG DOES A PERSON STAY ON THE SEX OFFENDERS REGISTRY?

Sex Offender Registry orders last for a period of between 10 years to life, depending on the circumstances.

WHAT IS THE AGE OF CONSENT IN CANADA?

As set out in the Criminal Code, the “age of consent” in Canada is 16 years of age. Once a person turns 16, they are old enough to be able to legally consent to sexual contact with another person.

If a person is 12 or 13 years old, they are legally able to consent to sexual contact with someone who is less than two years older than them, so long as the other person:

• Is not in a position of trust or authority towards them,
• Is not someone with whom they are in a relationship of dependency, and,
• The relationship between the 12 or 13 year-old and the other person is not exploitative of the 12 or 13 year-old.

Similarly, if a person is 14 or 15 years old, they are legally able to consent to sexual contact with someone who is less than five years older than them, so long as the other person:

• Is not in a position of trust or authority towards them,
• Is not someone with whom they are in a relationship of dependency, and,
• The relationship between the 14 or 15 year-old and the other person is not exploitative of the 14 or 15 year-old.

If a 14 or 15 year-old is married, they are also able to consent to sexual activity with their husband or wife.

If a person is under age 16 and none of these exceptions apply to that person, it is not a defence to a charge of sexual assault that the under-age person agreed to sexual touching or contact with the accused. For example, even if a 15 year-old agreed to have sex with someone aged 21, in law, the 15 year-old’s “consent” is considered invalid, and the 21 year-old would still be guilty of sexual assault.

THE POLICE WANT TO SPEAK WITH ME ABOUT AN ALLEGED SEXUAL ASSAULT OR AN ALLEGED SEX OFFENCE. I THINK THE POLICE MIGHT BE INVESTIGATING WHETHER I COMMITTED A CRIME. WHAT SHOULD I DO?

You should always consult with a lawyer before you speak with the police about a complaint or allegation of a sexual offence – even if you think you are innocent and even if you have nothing to hide.

The police may tell you that they are simply “looking into an incident,” or that they just “need to get your side of the story.”  It is still important that you receive legal advice about your rights and responsibilities before you say anything to the police which could hurt your ability to defend yourself. To learn more, please read our article “What You Need to Know If the Police Want to Speak With You“.

If you are currently facing sexual assault charges contact a criminal lawyer at Pringle Law to discuss your case. Our sound representation and experience as sexual assault lawyers can help you to avoid the severe consequences associated with such offences.