Aggravated Sexual Assault (s. 273) Charges in Canada: Offences, Defences, Punishments

What is an aggravated sexual assault charge?

Sexual assault is covered under s.273 of the Criminal Code.

Canada has a broad definition of sexual assault as sexual assaults can encompass a variety of sexually related charges such as those that involve the use of violence or a weapon. Generally speaking, sexual assault includes all unwanted sexual activity.

There are three levels of sexual assault: general sexual assault, s.271 of the Criminal Code, Sexual assault with a weapon, threats to a third party or causing bodily harm, s.272 of the Criminal Code, and aggravated sexual assault, s.273 of the Criminal Code

Aggravated sexual assaults are straight indictable offences in which the Crown cannot elect to proceed otherwise.

Examples

• Having sexual intercourse with a partner and failing to disclose HIV-positive status
• Sexual assault that causes extensive long-term physical injuries
• Any sexual assault that wounds the complaint ex: breaking of the skin
• Any sexual assault that maims the complainant
• Any sexual assault that disfigures the complainant

Defences

A strong defence depends entirely on the specific facts of your case and the evidence against you.

However, some common defences to sexual assault include

• Honest but Mistaken Belief in Consent;
• Mistake in Identity;
• Maintaining that there was no sexual contact;
• That there was consent; and/or
• Any applicable Charter

Punishments

If you have been convicted of aggravated sexual assault you may be subject to the following penalties.

If a restricted firearm is used or there is an association with a criminal organization:

• Max = life imprisonment
• First offence = minimum five years in jail
• Second or subsequent offence = minimum seven years in jail
• Any other case = life imprisonment

Overview of the Offence 

Aggravated sexual assault is found under s.273 of the Criminal Code:

This definition of assault is explicitly applied to sexual assault, as per s.265(2) of the Criminal Code. Thus, the Crown must first satisfy that there was an assault that occurred by meeting the definition of assault provided in s.265(1)(a) of the Criminal Code to secure a conviction of sexual assault.

Once it has been satisfied that an assault has taken place, the Crown must prove the essential elements of a sexual assault. R v Ewanchuk [1999] 1 S.C.R 330 (‘Ewanchuk’) is a seminal case on a sexual assault which provides the elements that the Crown has to prove, beyond a reasonable doubt, to secure a conviction of sexual assault. As for any criminal conviction, the Crown must prove both the actus reus and the mens rea of the offence for an accused to be found guilty. To secure a conviction of aggravated sexual assault, the Crown must prove the elements of sexual assault along with the elements of aggravated assault.

The Guilty Act (Actus Reus)

Ewanchuk provides that the actus reus of sexual assault is unwanted sexual touching.

The actus reus of sexual assault and aggravated sexual assault is established by proof of the following elements: 

• Touching (or threat of touching);
• Sexual nature of touching; and
• Absence of consent; and

Along with the actus reus of sexual assault, for aggravated sexual assault the Crown must also prove that the injuries amounted to the victim either:

• Wounded;
• Maimed;
• Disfigured; or
• Had endangered life.

The touching, or the threat of touching, must be voluntary in order to satisfy the actus reus.

In relation to the sexual nature of the touching, this element of the actus reus is determined by applying an objective test. This means that the Courts will take into consideration how the reasonable person would view the touching. The touching does have to be of a sexual part of the body. Rather, as indicated in the case of R v Dinardo, [2008] S.C.C, the sexual element of touching can arise from circumstances other than the manner in which the victim was touched.

Ewanchuk discussed how the absence of consent is an element of the actus reus that is purely subjective in nature. This means that what is taken into consideration when determining whether there was an absence of consent is the complainant’s subjective, internal state of mind at the time towards the touching, at the time it occurred.

Under s.273.1 of the Criminal Code consent, for the purposes of sexual assault, is the voluntary agreement of the complainant to engage in the sexual activity in nature.

The Criminal Code, under s.265(3), provides further guidance on what consent is not for all forms of assault.

No consent is obtained where the complainant submits or does not resist by reason of:

Similarly, s.273.1(2) of the Criminal Code provides guidance on what consent is not by indicating that no consent is obtained for the purposes of sexual assault if:

Consent cannot be implied in Canada. However, often times in cases of sexual assault there are situations where it appears that there is consent, this is what is called ostensible consent. In these cases of sexual assault, the Court adopts a two-step process from the case of R v Hutchinson [2014] S.C.C 19 (“Hutchinson”) to determine whether or not there was in fact consent present.

This two-step process includes determining:

1. Whether the complainant voluntarily agreed to engage in the sexual activity in question; and
2. If there was reasonable doubt for this apparent or ostensible consent, then the next step would be to determine if the consent is ineffective or vitiated because of the operation of s.265(3) or s.273.1(2) of the Criminal Code.

If consent is vitiated because of any of the factors listed in s.265(3) or s.273.1(2) of the Criminal Code, then this element of the actus reus will be satisfied and the Crown may able to secure a conviction of sexual assault if all other elements are satisfied.

The Guilty Act (Mens Rea)

Ewanchuk also provided that the mens rea element for sexual assault is satisfied when the Crown is able to prove, beyond a reasonable doubt, that there was:

• The intention to touch the complainant or being reckless or willfully blind to the lack of consent on the part of the complainant.

Sexual assault is a general intent offence. This means that all the Crown needs to prove is that the accused intended to touch the complainant to satisfy the basic mens rea requirement. Additionally, the mens rea for an offence of sexual assault can be made out when the accused knew that the complainant was not saying yes but was being reckless or willfully blind.

In relation to aggravated sexual assault, there must be objective foresight of the risk of bodily harm. However, there is no need for the intent to wound, maim, disfigure or endanger the victim’s life.

Defences

With sexual assault charges, the availability and strength of any defence depend entirely on the specific facts of your case and the evidence against you. However, there are some common defences that can be used when defending sexual assault charges.

Honest but Mistaken Belief in Consent

The defence of ‘Honest but Mistaken Belief in Consent’ is a form of mistake of fact and will remove any culpability if you honestly, but mistakenly, believed that you had consent. Ewanchuk stated that “in order to cloak the accused’s actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question”. However, Ewanchuk further explained that “a belief that silence, passivity, or ambiguous conduct constitutes consent is a mistake of law and provides no defence”. This means that you must be some evidence of ambiguity or equivocality which shows that your mistaken belief was not based on willful blindness or recklessness as to the absence of consent. In other words, there must be at least an “air of reality’ to your honest but mistaken belief.

Mistake in Identity

Depending on the circumstances of your case, a possible defence to a sexual assault charge may be to raise an identity defence. Sometimes, false accusations of sexual assault do occur, and the wrong person is charged as a result. For example, in some cases, the complainant may not be able to clearly identify the perpetrator and end up accusing the wrong person or the authorities may have made a mistake in identifying you as the perpetrator. This would be a case of mistaken identity. In order for this defence to be raised successfully, you will have to prove that you were not present at the time of the offence. This can be done by corroborating evidence, such as an alibi, to remove you from the time of the offence.

No Sexual Contact

In order for the prosecution to secure a conviction of sexual assault both the actus reus and the mens rea need to be satisfied. If you are able to prove that there was no sexual touching, then an essential element of the actus reus is not satisfied and you cannot be convicted of sexual assault.

Consent

Consent is often a contentious issue in sexual assault cases and forms part of the actus reus for a sexual assault offence. Therefore, if the complainant consented to the sexual touching, you cannot be convicted of sexual assault as the actus reus element of the offence is not satisfied. However, it is important to note that the complainant has to have consented to all sexual touching at the time that the touching took place. The consent also needs to be express as there is no such thing as implied consent. Additionally, consent cannot be granted if it is obtained by force, threats, fear, fraud, or the exercise of authority.

Applicable Charter Defences

The Charter sets out your rights before and after arrest. In the event the police fail to abide by these rights, you may have an applicable Charter defence to your charge:

Common Charter breaches include:

• Section 8- Right to be secure from search and seizure;
• Section 9- Right not to be arbitrarily detained;
• Section 10- Right to be informed of reasons for detention or arrest:
• Section 11- General: legal rights apply to those “charged with an offence”
• Section 12- Cruel and unusual treatment or punishment

If any of your charter rights have been violated, you may be in a position to have any evidence obtained during the breach excluded.

Punishments

For aggravated sexual assault with a restricted or prohibited firearm or with a non-prohibited firearm and relating to a criminal organization, the minimum sentence that will be imposed will be five years imprisonment for a first offence or seven years for a second offence. However, the maximum sentence is life imprisonment. You would also only have available to you a sentence with a prison term or prison and a fine.

For aggravated sexual assault using a non-restricted firearm the minimum sentence that can be imposed is 4 years in jail, while the maximum sentence you could face is life imprisonment. You would also only have available to you a sentence with a prison term or both prison and a fine.

If you are convicted under s.273 of the Criminal Code and the victim is under the age of 16, then there is a minimum sentence of 5 years in jail imposed with the maximum sentence being life imprisonment.

For any other case under s.273 of the Criminal Code the maximum sentence is 14 years in jail, and you would have available to you a suspended sentence, fine alone, fine and probation, prison, prison and fine, and intermittent, fine, probation and intermittent sentence. Note that you will not have available a conditional sentence or a discharge.

Frequently Asked Questions

Can you go to jail for Aggravated Sexual Assault?

Yes, you can go to jail if you are convicted of aggravated sexual assault. Especially if your case has any aggravating factors (such as a firearm was used or the complainant was under the age of 16).

Is Aggravated Sexual Assault a serious offence?

Yes, aggravated sexual assault is a serious offence and is prosecuted harshly. Even for a first offence, you may receive a jail sentence.

Is Aggravated Sexual Assault a summary or indictable Offence?

Aggravated sexual assault is a straight indictable offence which means that the Crown can only elect to proceed by indictment.

Published Decisions

R v. Mabior, 2012 SCC 47

The accused was charged with nine counts of aggravated sexual assault based on his failure to disclose his HIV-positive status to nine complainants before having sex with them (ss. 265(3)(c) and 273 Cr. C.). None of the complainants contracted HIV. The trial judge convicted him on six of the counts and acquitted him on the other three, on the basis that sexual intercourse using a condom when viral loads are undetectable does not place a sexual partner at “significant risk of serious bodily harm”. The Court of Appeal varied the decision, holding that either low viral loads or condom use could negate the significant risk. This was reduced to two counts on which the accused could be convicted, and the Court of Appeal entered acquittals on the four remaining counts. The Crown appealed the acquittals.

You can read the full decision here.

R v. Cuerrier, [1998] 2 SCR 371

The accused was charged with two counts of aggravated assault pursuant to s. 268 of the Criminal Code. Even though he had been explicitly instructed, by a public health nurse, to inform all prospective sexual partners that he was HIV-positive and to use condoms every time he engaged in sexual intercourse, the accused had unprotected sexual relations with the two complainants without informing them he was HIV-positive. Both complainants had consented to unprotected sexual intercourse with the accused, but they testified at trial that if they had known that he was HIV-positive they would never have engaged in unprotected intercourse with him. At the time of trial, neither complainant had tested positive for the virus. The trial judge entered a directed verdict acquitting the accused. The Court of Appeal upheld the acquittals.

You can read the full decision here.

R v. Williams, 2003 SCC 41

The complainant and the accused had an 18-month relationship and the accused had recently tested positive for HIV. The complainant tested negative shortly thereafter. The accused kept the complainant in the dark about his HIV condition as well as the fact that he had been tested. Although the accused was given counselling on at least three different occasions by two doctors and a nurse about HIV, its transmission, safer practices and his duty to disclose his HIV status to sexual partners, he continued to practice unprotected sex with the complainant. The complainant eventually tested positive for HIV At trial, W was convicted of aggravated assault and common nuisance. The Court of Appeal upheld the conviction for common nuisance but allowed the appeal against the conviction for aggravated assault, substituting therefore a conviction for attempted aggravated assault.

You can read the full decision here.