What is the Sentence for Sexual Assault in Canada?

There is a broad range of sexual assault types and factors to consider. That’s why the sentence for sexual assault will vary from case to case. However, note that sexual assault in Canada is a serious accusation. Besides, the range of factors involved in cases makes them complex enough.

As the Criminal Code of Canada suggests, any unsolicited or unconsented sexual act is subject to a sexual assault acquisition. And as easily as one can overlook the need for consent, any form of sexual activity can be tagged as an assault. This is why there is a large number of people accused of sexual assault.

Let’s know the factors considered in sexual assault cases to determine punishment and relevant information like the nature of discharge in sexual assault cases in Canada.

As mentioned earlier, various factors will be considered to determine the punishment of a sexual assault conviction.

Connecting to that, there are a long list of mitigating factors and some aggravating factors that affect the sentencing.

Find details about these factors in the following sections.

Mitigating factors will deliver less serious sentencing. And compared to aggravating factors, there are fewer mitigating factors.

Anyway, if there are mitigating factors present in a sexual assault case, the crown will decide if s/he should process summarily.

Summarily means the crown won’t forward you to a jury trial or indictment. On the other hand, it can be by indictment or conditional discharge.

Here are the most important mitigating factors in a sexual assault case:

• First-time offender: If the accused is a first-time offender, there is the possibility of reducing the punishment.
• Minor: If the accused is a juvenile, the case will take a complete turn.
• Early guilty plea: If the offender gives an early guilty plea, it will reduce the sentence. Early guilty pleas make the sentencing less severe because it indicates the offence is remorseful.

Also, it will save the court’s time which is another positive impression. Keep in mind, you should prepare for a guilty plea by consulting a lawyer.

These kinds of factors will make the punishment severe. Also, this indicates that the charge is severe. One can get a minimum sentence or more serious punishment based on these factors.

You have learned in the previous section, there are more aggravating factors compared to mitigating ones.

Find out the common aggravating factors below:

If the assault is a minor, you will likely receive serious punishment.

If someone knowingly assaults a minor sexually, this again affects the severity of punishment.

Likewise, if the accused aren’t aware of the victim’s age, the sentencing will differ. But one proves that they didn’t know the age of the victim.

Surely, the law applies the same for all. But it’s a little different for people with any sort of mental or physical vulnerability.

For instance, the victim could be under the influence of drugs. Furthermore, the victim can be mentally or physically challenged. Hence, if the offender is an adult, and a capable person, they will have severe sentencing for assaulting an individual with a certain vulnerability.

The degree of force applied also matters in Canada’s sexual assault laws. In other words, if the victim is seriously injured, it shows a high degree of force to conduct the criminal act.

Canada strictly regulates the abuse of any kind of power. If the offender is in a power position and sexually assaults someone, it means they exploited the power. So, the punishment will be severe.

If there is any weapon involved in a sexual assault crime, it means that a substantial amount of force was used. As a result, the sentencing will be hasher.

This particular act thoroughly affects a case negatively and involves a serious penalty.

As specified before, a first-time offender might not face aggravated sentencing. But if the offender commits the same crime again, there will be serious sentencing.

When a person violates the Criminal Code, and it’s a serious offence, the least severe punishment a judge may impose is a minimum sentence.

Although Judges are free to impose punishments higher than the average, they can’t set a punishment lower than the MINIMUM.

For sexual assault, section 271 criminal code of Canada specifies the minimum sentences based on some aggravating circumstances:

If the victim is a minor, and the case proceeds summarily, the minimum jail time for sexual assault is 6 months. But if the Crown decides to proceed by indictment, the jail time will extend up to 1 year.

For aggravated sexual assault involving the use of weapons or firearms and injuries to the victim, the minimum punishment is four years in prison.

However, in more severe cases involving a threat to life, repeat offenders, or other aggravating factors, the maximum sentence is seven years.

Sometimes an offence doesn’t even carry a minimum punishment and that includes sexual assault. So, under section 730 of the Criminal code, a person charged with sexual assault may be discharged. Basically, this considers the best interest of an accused and the public interest.

Discharges are of two types:

In this ruling, the accused will be under probation. And they will be obligated to keep peace and demonstrate good behavior. Additionally, the judge might specify some option conditions, such as:

• Not bothering the victim again
• Not owning any weapon
• Not consuming any drugs or alcohol, and so on.

Once the probation period expires, the conditions won’t apply anymore. But, a conditional discharge will be listed in the Royal Canadian Mounted Police (RCMP) database for 3 years.

In this kind of discharge, an accused gets an unconditional release. And the discharge record will no longer be accessible and will be deleted after one year.

Criminal law takes strict steps to figure out if there was any consent while involved in sexual activity. When there is no reasonable consent, it leads to a sexual assault.

There are some instances listed  under Canadian Criminal Code that indicate there wasn’t any consent granted for the sexual act:

• The consent was given by someone else instead of the victim.
• The victim was unconscious or incapable of expressing consent for reasons like sleeping, mental handicap, and intoxication.
• Someone in an authoritative position abuses power to conduct nonconsensual sexual activity.
• The victim manifested a lack of consent via word or behavior before engaging in a sexual act or during the act.

Note that this list is not exclusive to the Criminal code. There could be many more ways to force oneself and express disagreement with a sexual activity.

The law requires individuals to obtain valid consent no matter what. Also, at any time, one must if the other party withdraws their consent.

And if someone conducts the crime under intoxication, willful ignorance, or recklessness and says they thought there was consent, it’s not a rational defence.

In Canada, the type and severity of the allegations against you determine the minimal or least sexual assault sentence. Depending on the circumstances, it can take years. For instance, the victim can be a minor.

If you’re accused of sexual assault, and the allegation is unfair, the first thing you need to do is to talk to an experienced criminal defence lawyer. Otherwise, as mentioned in the discussion, sexual assault cases can be super complicated, and it’s not easy to get out of one.