Physical contact between people is highly personal. Under Canadian law, if you intentionally touch someone without their consent for a sexual purpose, police can charge you with sexual assault. This might seem straightforward; however, Canada’s Criminal Code does not clearly define what constitutes sexual assault. Instead, Section 265 of the Code notes that the defining elements of all forms of “assault” include those of a sexual nature. Section 271 of the Code then establishes the penalties that judges can impose upon conviction, which are harsher than those for simple assault.
With the Criminal Code’s lack of clarity about what constitutes sexual assault, its definition has been tailored over the years by Canadian courts, say the Greater Toronto Area sexual assault criminal defence lawyers of Mass Tsang. For example, in R v. Chase [1987] 2 S.C.R. 293 , the Supreme Court of Canada described sexual assault as an assault of a sexual nature that violates the sexual integrity of the victim. Numerous other higher court rulings have added significant clarity to other elements of the offence, including “consent,” “sexual purpose,” and “intent.”
Given the vast range of actions that might constitute sexual assault under the law, the courts have also established de facto sentencing guidelines by ascribing factors judges should consider. Some examples include:
This higher-court guidance helps enhance fairness in the sentencing decisions of those convicted of sexual assault. From a legal standpoint, someone accused of a non-consensual caress of the buttocks faces the same potential maximum punishment as someone accused of forcible rape. That certainly doesn’t seem fair, so let’s take a closer look at sexual assault and its proscribed penalties under the Code.
Section 265 of the Criminal Code denotes what’s known as level 1 or simple assault as a sexual assault if the following actions were committed with a sexual purpose:
Section 271 of the Code lays out the potential penalties judges can impose on those convicted as such:
The Criminal Code provides judges sentencing discretion with alternatives to custodial punishment, including:
Judges can apply any of these alternative sentences to sexual assault offenders convicted summarily, provided the victim wasn’t under age 16. Those convicted under indictment are not eligible for a discharge or conditional sentencing. Whether indictment or summarily, judges cannot apply a discharge, suspended sentence, stand-alone fine, or conditional sentencing to those convicted of sexual assault on anyone under 16.
In addition to these standard judicial penalties, a sexual assault conviction can result in mandatory inclusion on the sex offender registry , with its onerous reporting and compliance conditions .
A 2017 Statistics Canada study on sexual assault court outcomes determined that while 56% of sexual assault convictions over a five-year period led to custodial sentencing, only 36% of physical assault convictions did. Criminal defence lawyer and managing partner of the Greater Toronto Area’s Mass Tsang law firm, Jeff Mass , says he believes these sexual assault imprisonment rates are higher today. “In the wake of the ‘Me Too’ Movement and in the face of heightened public focus on all sexual misconduct, judges are incentivized to show they take a tough stance against sexual assault. Additionally, the offence’s low conviction rate may inherently encourage them to make up for the ones that got away.”
The Stats Can 2017 study determined that only one out of 10 sexual assault cases resulted in a conviction during the five-year period studied. That figure has increased slightly since then, according to recent Stats Can court decision data . During the 2022-2023 reporting period, Canadian courts convicted 1,407 out of 10,252 sexual assault defendants. In Ontario, courts convicted 623 out of 5,541 sexual assault defendants.
However, Mass Tsang’s managing partner, Robbie Tsang , notes that these sexual assault conviction rates do not include convictions of offenders whose original charges were changed during court processing. “Whether through plea bargaining, administrative, or judicial reasons, about 60% of initial sexual assault charges were changed,” he says, referencing the 2017 Stats Can study. Almost 30% of the original sexual assault charges were changed to another sexual offence, while about 25% were changed to physical assault. “This happens all the time,” says Robbie. “For some of our GTA criminal defence clients, avoiding the onerous penalties that come with a sexual assault conviction is worth accepting a conviction for a lesser offence.”
To avoid the significant penalties that can be handed down by a judge upon conviction, anyone facing Section 271 sexual assault charges should secure the services of a skilled sexual assault criminal defence lawyer . A highly competent criminal defence lawyer can mount an effective defence to challenge the charges or secure an otherwise favourable outcome that doesn’t involve a prison sentence, criminal record, and registration as an Ontario sex offender.
If Ontario Police charge you with sexual assault in the Greater Toronto Area, secure the best possible defence with the skilled experts at Mass Tsang. With over 30 years of combined experience, our criminal defence lawyers have successfully defended 100s of clients against sexual assault charges. Contact us for a free initial consultation to learn how we can strategize the most effective defence against your sexual assault charges in Toronto.
