Sexual assault is a unique and shockingly widespread criminal problem in Canada. The victims are predominantly female and their attackers rarely suffer any consequences, since only six per cent of sexual assaults are reported to police.
Here’s what the law says about sexual assault in its various forms and what constitutes consent.
What is sexual assault?
Canadian law defines sexual assault as all incidents of unwanted sexual activity, including an attack or even touching.
Physical contact of a sexual nature without your consent is sexual assault.
A man or woman can be the victim of a sexual assault and an attacker can be the same sex as the victim. A spouse can commit sexual assault on their partner.
There are three different levels of sexual assault, distinguished mostly according to the level of violence.
Sexual assault: as defined above, with little or no physical harm to the victim. This is punishable by up to 10 years in prison.
Sexual assault with a weapon, threats, or causing bodily harm: When the attacker carries a weapon (or imitation) or causes bodily harm to the victim or another person. Anyone else party to an assault can be charged with this offence. Punishable by up to 14 years in prison.
Aggravated sexual assault: when the attack wounds, maims, disfigures or endangers the victim’s life. Can result in a life sentence.
What is consent?
The code defines consent as: “the voluntary agreement of the complainant to engage in the sexual activity in question.”
The person being touched must freely consent to the act and also understand what they are consenting to.
Consent has not been given if:
- Someone besides the victim voices consent on their behalf;
- The victim is incapable of expressing consent (is unconscious, for example);
- The attacker induces a position of power, trust or authority (such as an employer or teacher) to induce the victim to engage in sexual activity;
- The victim expresses – by words or conduct – a lack of agreement to participate in the sexual act. The law is very clear that “no means no,” but a person doesn’t have to say no to express a lack of consent;
- The victim, even after agreeing to participate, expresses – by words or conduct – a wish to stop participating.
In 2011, the Supreme Court of Canada also said that a person cannot consent in advance to sexual acts that may occur while they’re unconscious. In that case, a man choked a woman into unconsciousness with her consent, but when she awoke, he had tied her hands and was using a sex toy on her in a manner she had not previously agreed to. In their ruling the justices said the law “requires ongoing, conscious consent” to prevent sexual exploitation and “to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point.”
Who can consent?
Anyone under the age of 16 cannot legally consent to a sex act with someone more than five years older. Likewise, someone 14 or under cannot consent to sex with someone more than two years older.
Someone in a position of authority cannot claim consent if having sexual activity with someone under 16 years of age.
What is belief in consent?
A person accused of sexual assault can claim “belief in consent,” which is an honest but mistaken perception that the complainant agreed to the acts in question.
If a judge has reasonable grounds to accept this argument, they can instruct a jury to consider it.
However, a suspect cannot claim belief in consent if their belief arises from self-induced intoxication, “recklessness or willful blindness.” Also, they can’t claim such belief unless they took reasonable steps to confirm that the complainant was consenting.
Anyone claiming belief in consent has to show three things:
- Evidence that they believed the complainant was consenting;
- Evidence that the complainant refused consent, did not consent, or was incapable of consenting;
- Evidence of ambiguity or equivocality showing how the accused could honestly have mistaken the complainant’s lack of consent for consent.
How can I report it?
Victims of sexual assault can report it either by contacting police or by going to a hospital.
At a hospital, you will be asked if you wish to report the assault. It won’t be done automatically.
To assist in gathering evidence, police ask anyone who’s been assaulted to avoid the following:
Each province and territory has many discreet resources for victims of sexual assault, including helplines, counselling services and legal advice. Look for resources in your area for more information on reporting and other assistance.
Canada's Federal Ombudsman for Victims of Crime
- Showering or bathing;
- Changing or disposing of your clothes;
- Washing your hands or hair;
- Consuming any drugs or alcohol;
- Disturbing the scene of the assault.
Victim services by province / territory: http://www.victimsfirst.gc.ca/serv/spt-spt.html#