As set out in Section 271 of the Criminal Code, the crime of sexual assault encompasses any physical contact of a sexual nature between two individuals that is non-consensual. To address the prevalence of the offence in Canada, the crime has a broad definition that goes well beyond sexual intercourse. A kiss, touching of a breast or slapping a person’s buttocks could all be prosecuted as sexual assault.
For an offence to be considered sexual assault as opposed to an assault, there must be a sexual component to the non-consensual physical contact between the person being accused and the person making the accusation.
To establish whether the contact has a sexual component, the court will contemplate circumstances involved in the event as well as the area and body parts that were touched.
If you are facing charges of sexual assault, contact a sexual assault defence lawyer in Toronto, London, Kitchener or Windsor who can help with your case.
How is Someone Convicted of Sexual Assault?
To be convicted of sexual assault in Canada, crown counsel must prove beyond a reasonable doubt that the person who filed the complaint did not consent to the sexual act in question. An individual must be capable of providing consent to the sexual contact and the consent must be freely given.
For instance, someone who is very drunk or under the influence of a drug may not be capable of providing consent under the law. Their ability to consent would depend on the degree of impairment by alcohol or drugs.
Furthermore, because the use of force or intimidation may be present, silence or immobility does not constitute consent.
If the person filing the complaint did not provide consent, a possible defence is that the accused had a genuine belief that consent was given. The defence of having an “honest but mistaken belief in consent” is restricted and it is best to consider other potential defence strategies first.
Under Canadian law, consent cannot be implied. Consent must be provided via behavior or words that are clearly communicated. An individual cannot depend on a mistaken belief in consent unless all reasonable steps toward obtaining consent were taken.