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Sexual Assault

Sexual assault is defined in s. 265 of the Criminal Code, the same as an assault, except there must have been a sexual nature to the contact. Whether contact is considered “sexual” depends on the circumstances.

Sexual assault is a serious offence with a high degree of stigma attached to it. It results in trials much more frequently than plea resolutions in part because of the significant jeopardy placed on the accused.

The BC Court of Appeal has said that for an accused convicted of a penetrative sexual assault the sentencing range is between 2-6 years in custody.

If the Crown proceeds by indictment on a sexual assault charge, a Conditional Sentence Order (i.e. “house arrest”) is not an available sentencing option for a judge.

Regardless of election, if an accused is convicted of sexual assault they must be registered as a sex offender under the Sex Offender Information Registration Act (“SOIRA”). The length of time is ten years if the Crown proceeded summarily and twenty years if they proceeded by indictment.

Generally, the triable issue in sexual assault cases is whether the Crown can prove beyond reasonable doubt that the complainant did not consent to the sexual activity in question. Sometimes this depends upon the testimonial evidence of the complainant alone.

Over the years there have been an increasing number of protections to sexual assault complainants. For example, the defence is not permitted to cross-examine the complainant on their prior sexual history without first making an application to the court.

The Crown may also apply to allow a sexual assault complainant give their testimony in court with a screen, or through video link, so that they can avoid seeing the accused. This can make cross-examination of the complainant more difficult.

More recently, and more controversially, the “Ghomeshi amendments” (s. 278.92) have been made to the Criminal Code. These amendments require an accused in possession of a record they wish to use in cross-examination of the complainant to apply to the court first before they can do so. The complainant is entitled to be present during this application, and can retain their own lawyer as well.

The Ghomeshi amendments have been found by at least one court to be unconstitutional (R. v. A.M., 2019 SKPC 46). The amendments appear to have been made by parliament as a response to the high-profile acquittal of Jian Ghomeshi. In that case, Mr. Ghomeshi’s lawyer made effective use of email records that directly contradicted the complainants’ testimonies. Each complainant was therefore found not to be sufficiently credible and reliable that the trial judge could find Mr. Ghomeshi was guilty beyond reasonable doubt.

It is a defence to sexual assault for the accused to have had an honest belief in consent of the complainant. However, this defence is heavily limited by s. 273.2 of the Criminal Code. The defence cannot have arisen out of the accused’s self-induced intoxication and it cannot succeed if the accused was reckless, wilfully blind, or failed to take reasonable steps to ascertain consent in the circumstances known to them at the time.

Sexual assaults, like non-sexual Assaults, have their upgraded counterparts: sexual assault causing bodily harm, sexual assault with a weapon, and aggravated sexual assault.

You can find some of the firm’s case results for Sexual Assault HERE.

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