***Please note the following is not meant to be legal advice, it is simply a discussion about the topic.  If you or someone you know has been charged with Sexual Assault, please contact the lawyers at Nadi Law in order to schedule a consultation****

In Canada, Sexual Assault is an offence under section 271 of the Criminal Code.  The offence includes a wide range of conduct from full rape (intercourse) to any type of non-consensual touching.  A sexual assault is also a form of assault within one of the definitions under section 265 of the Criminal Code.  Before getting into the specifics of a Sexual Assault charge, it is important to understand the two main elements required before any type of crime is committed.  Those elements are collectively referred to as the actus reus and mens rea. In order for an individual to be convicted of any type of crime, these two elements need to be established by the prosecution. The actus reus is refers to the guilty act – does the offender’s actual conduct meet the definition of the crime?  The mens rea is the guilty mind – did the offender intend to commit the crime?

Sexual assault is not expressly defined in the Criminal Code, which means that the definition was developed by judges pursuant to the Common Law. For a sexual assault charge to be made out, firstly there must be an assault – there must be some form of contact without the victim’s consent.  That contact must also be of a sexual nature.  The conditions/circumstances of a sexual nature must be perpetrated such that the sexual integrity of the complainant is violated.^[1] It is important to note whether the contact is of a sexual nature is determined objectively. The objective test is whether a reasonable person would characterize the act, as sexual in nature when viewed in the light of all the circumstances. This objective test was set out in the case of R v Taylor, where it was determined that for an assault to be deemed of a sexual nature, one must ask whether the sexual or carnal context of the assault is visible to a reasonable observer.[2]

Factors relevant to this determination will include things such as the part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act and all other circumstances surrounding the conduct.

Combining the definition of assault under s. 265(1)(a) with the interpretation of sexual assault by the case law, we can define the actus reus and mens rea of Sexual Assault as follows:

Actus Reus

 

1. Applying force directly or indirectly to another person;
2. The application of that force, when the entire circumstances are viewed objectively, violate the sexual integrity of that person; and
3. The application of force must be without the consent of that other person.

Mens Rea

 

1. An intention to apply force; and
2. Knowledge of, or recklessness, or wilful blindness towards the absence of consent.

As can seen from the above, there is no requirement for proof that the accused had any mens rea/guilty mind with respect to the sexual nature of his or her behaviour.

Sexual Assault trials are some of the most complicated trials in criminal law.  Oftentimes an accused can be charged with multiple different offences depending on whether any aggravated circumstances were present. Some of those aggravated circumstances are included in section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm), and section 273 (aggravated sexual assault). Aggravated forms of sexual assault require the Crown to prove an additional aggravating element to the Sexual Assault.  This could mean the use of a weapon or proof of specific injuries to the victim. A charge under these sections carries with it a longer maximum penalty and sometimes even a set minimum.

Now that we have established a basic understanding of the actus reus and mens rea, it is also important to discuss the role of consent in sexual assault cases. Consent is relevant both in the determination of actus reus and mens rea. A conviction for sexual assault under section 271(1) of the Criminal Code requires proof beyond a reasonable doubt of the actus reus and the mens rea.

A person commits the actus reus if s/he touches another person in a sexual way without his/her consent. It has been established in R. v. Ewanchuk that consent for this purpose (the actus reus) is the actual subjective consent in the mind of the complainant at the time of the sexual activity in question. Therefore, if the complainant provides evidence that they did not consent to the sexual activity, and that is believed on a standard of proof beyond a reasonable doubt, the actus reus is made out.

Consent in the context of Sexual Assault is defined under s. 273.1(1) as “the voluntary agreement of the complainant to engage in the sexual activity in question”.  The consent must also be present at the time the sexual activity takes place.  If a defendant is arguing that the actus reus for Sexual Assault has not been met since there was consent, he/she should be mindful that the Criminal Code specifically states that there is NO consent in the following circumstances:

 

• the agreement is expressed by the words or conduct of a person other than the complainant;
• the complainant is unconscious;
• the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1);
• the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
• the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
• the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

If the actus reus is made out, and the lack of consent is established beyond a reasonable doubt, that does not automatically amount to a conviction.  Remember that the mens rea is also a required element of the offence.  A person has the required mental state, or mens rea of the offence, when he or she knew that the complainant was not consenting to the sexual act in question, or was reckless, or wilfully blind to the absence of consent. When the accused does not do their part in assuring consent, then they become criminally liable for the offence.

If the defence becomes a mens rea issue, then it is imperative that the accused proves that they took all reasonable steps to establish consent. The accused may even provide evidence that they believed that consent was communicated, this is referred to a defence of honest but mistaken belief. This takes effect if she or he believed that the complainant communicated consent to engage in the sexual activity. However, keep in mind that Parliament has limited the defence of “honest but mistaken belief” in section 273.2 of the Criminal Code. Therefore, this defence cannot be used to charge of Sexual Assault under section 271, 272 or 273, where,

 

• the accused’s belief arose from the accused’s
  • self-induced intoxication, or
  • recklessness or wilful blindness; or …
• the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
• there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

As you can see from the above provisions, sexual assault cases can get quite complicated.  The above information represents the tip of the iceberg when it comes to Sexual Assault cases.  The complexity of these cases increases significantly when considering the fact that there are very specific rules of evidence that apply solely to Sexual Assault cases.

The consequences of a Sexual Assault conviction are severe.  It usually involves a lengthy period of jail time, a criminal record and being added to the Sex Offenders registry.  If you or someone you know is facing a Sexual Assault charge, please feel free to contact the lawyers at Nadi Law for assistance.  Our office has significant experience defending clients against such charges, and we can most certainly assist.

-The team at Nadi Law