Sexual Offences

• Author: Brian H. Greenspan/Vincenzo Rondinelli/Daniel Brown/Jill Witkin
• Pages: 33-71

33

Sexual Oences

2

I. Introduction ............................................. 

II. Sexual Assault ............................................ 

III. Sexual Assault with a Weapon, Threats to a Third Party,

or Causing Bodily Harm ................................... 

IV. Aggravated Sexual Assault .................................. 

V. Sexual Interference ........................................ 

VI. Invitation to Sexual Touching ................................ 

VII. Sexual Exploitation ........................................ 

VIII. Voyeurism ............................................... 

IX. Incest .................................................. 

X. Publication of an Intimate Image Without Consent .............. 

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34 Prosecuting and Defending Sexual Oence Cases

I. Introduction

Whether counsel is defending or prosecuting a sexual oence, it is of critical impor-

tance to understand the essential components of each charge to determine whether or

not the allegation can be supported by evidence in court. This chapter is designed to

identify the applicable sections of the Criminal Code1 that deal with sexual oences.

It covers the basic elements of several sexual crimes and will set out the legal tests

applicable for each oence.

The Crown must prove each of the elements of any criminal oence. This is called

making a prima facie case. In order for an accused to be convicted, the judge or jury

must be convinced of each of the essential elements of the oence beyond a reason-

able doubt. The accused can secure an acquittal by negating one or more of the ele-

ments of the oence. Each defence must pass the air of reality test.

The sexual oences discussed in this chapter will be organized as follows:

1. Overview: This section will give a brief description or history of the oence. It

will include the text of the relevant Criminal Code section.

2. The required elements: In order to prove any of the sexual charges in this

chapter, there are two kinds of evidence that must be presented in court: evi-

dence of the actus reus and evidence of the mens rea. They must both be present

at the same time for a conviction on an oence.2

a. Actus reus refers to the “guilty act” element of the crime. The required actus

reus can be either an act or a failure to act when a duty to act is implied in

law. There may also be a required circumstance3 or consequence.4

Implicit in the description of the acts that are required to form the oence

is the fact that they are physically voluntary. This means that a touch must

occur or a word must be spoken for the oence to be proven; they cannot

have been accidental, unconscious, or reflexive acts.

b. Mens rea is the mental element of the crime, which is the requirement of a

“guilty mind.” This pertains to what the accused was thinking with respect

to the crime. The default for interpreting the Criminal Code is that the mens

rea is subjective to the specific accused unless an objective standard of a

reasonable person is clearly indicated. The accused may have subjectively

intended for the oence to take place or may have been reckless or wilfully

blind as to whether or not the oence would occur.

1 RSC 1985, c C-46.

2 R v Cooper, [1993] 1 SCR 146, 78 CCC (3d) 289.

3 An example of a circumstance would be the required lack of consent for the crime of sexual

assault. Without a lack of consent on the part of the complainant, there is no sexual assault.

4 An example of a consequence would be bodily harm for the crime of sexual assault causing

bodily harm. Without any proof of bodily harm as a consequence of the actions, there is insuf-

ficient proof to make out this oence, though there may be sucient evidence to prove other

related or lesser oences.

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Chapter  Sexual Oences 35

3. Defences: Defences that are available to the accused will be listed in this sec-

tion. Not all defences are available to every charge. The defences themselves

will be described in Chapter 14, Consent.

4. Sentencing: This section will set out the range of penalties available for

each oence. Sentencing considerations are further discussed in Chapter 16,

Sentencing.

II. Sexual Assault

A. Overview

Sexual assault, as distinct from non-sexual assault, is not explicitly defined in the

Criminal Code. Instead, the courts have imported the sexual element into the actus

reus of the oence. The Criminal Code section reads as follows:

Sexual assault

271. Everyone who commits a sexual assault is guilty of

(a) an indictable oence and is liable to imprisonment for a term of not more than

10 years or, if the complainant is under the age of 16 years, to imprisonment fora

term of not more than 14 years and to a minimum punishment of imprisonment for

a term of one year; or

(b) an oence punishable on summary conviction and is liable to imprisonment

for a term of not more than 18 months or, if the complainant is under the age of

16years, to imprisonment for a term of not more than two years less a day and to a

minimum punishment of imprisonment for a term of six months.

Sexual assault and its related oences can be committed by and against a person of

any gender. It can also be committed both inside and outside any relationship.

B. Actus Reus

Proving this oence requires specific evidence5 that an accused person committed (or

aided, abetted, or counselled the commission of):

1. an identified assault

2. of a sexual nature such that the sexual integrity of the victim was violated

3. to which the complainant did not consent.6

5 Each charge should relate to a specific, identifiable transaction so as not to violate s11(a) of the

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being ScheduleB

to the Canada Act 1982 (UK), 1982, c 11 [the Charter]. See R v M(K), [2008] OJ No 198 (QL),

76 WCB (2d) 359 (Sup CtJ), which required that there be more specificity of the timing of the

assaults to prevent an acquittal.

6 R v GF, 2021 SCC 20 at para 25; R v Chase, [1987] 2 SCR 293, 37 CCC (3d) 97; R v S (PL),

[1991] 1 SCR 909, 64 CCC (3d) 193.

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