Sexual Assault with a Weapon (s. 272) Charges in Canada: Offences, Defences, Punishments

What is a sexual assault with a weapon charge?

Sexual assault with a weapon is covered under s. 272 of the Criminal Code and includes sexual assault causing bodily harm or threatening to cause harm to a person other than the complainant. Sexual assault with a weapon is found in Part VIII of the Criminal Code. Part VIII covers “Offences Against the Person and Reputation.”

A sexual assault with a weapon charge occurs when a person commits sexual assault while carrying, using, or threatening to use a weapon or an imitation of a weapon. A person can also be charged under s. 272 if they commit a sexual assault causing bodily harm or if they threaten a third party while committing sexual assault.

A sexual assault with a weapon charge is a straight indictable offence. Indictable offences are the most serious offence contained in the Criminal Code and they are accompanied by more serious punishments. If an accused is prosecuted by indictment, there is a Defence election of court under s. 536(2) of the Criminal Code.

Examples

Some examples of a sexual assault with a weapon charge may include the following:

• Committing sexual assault while holding a weapon, this can include a sex toy;
• Committing sexual assault while using a weapon on the complainant;
• Committing sexual assault while threatening to use a weapon; and
• Committing sexual assault while holding an imitation of a weapon.

Defences

The defences available to a sexual assault with a weapon charge are entirely dependent on the facts of your case.

However, some defences to a sexual assault with a weapon charge may include:

• The accused was wrongly identified as the person who committed sexual assault with a weapon;
• There was consent to use whatever is being perceived as the weapon and there was no intention by the accused to inflict bodily harm;
• While using a sex toy, the accused did not knowingly or recklessly use it without the consent of the victim in a circumstance where injury was reasonably foreseeable; and
• The accused did not commit sexual assault.

Punishment

A sexual assault with a weapon charge is an indictable offence, which entails a maximum punishment as follows:

• Imprisonment for 14 years
• If the complainant is under the age of 16, imprisonment for life

Punishments for sexual assault with a weapon depend on the circumstances of your case. If the offence is committed with a restricted or prohibited firearm, the maximum sentence is 14 years in prison. The minimum sentence for using a restricted or prohibited firearm is 5 years for a first offence, and 7 years for subsequent offences.

• In any other case where a firearm is used, the minimum punishment is 4 years in prison.
• If the complainant is under 16 years of age, the minimum punishment is 5 years in prison.

A sexual assault with a weapon charge will entail severe consequences for current and future employment opportunities and immigration status.

Overview of the Offence 

According to s. 272 of the Criminal Code:

The Guilty Act (Actus Reus)

The actus reus for a sexual assault with a weapon charge under s. 272 is established by proof, beyond a reasonable doubt, of the following:

Sexual assault with a weapon s. 272(a)

• The accused at a specified date and time, in the correct jurisdiction, sexually assaulted the victim; and
• While the sexual assault occurred, the culprit carried, used, or threatened to use a weapon or an imitation of a weapon.

R v Lamy held that the use of a sex toy may be considered a weapon in a sexual assault if the accused “knowingly or recklessly used the object without the consent of the victim in circumstances where injury was reasonably foreseeable.”

R v Papalia stated that causing bodily harm to the victim is not an essential element of the offence of sexual assault with a weapon.

Sexual assault causing bodily harm s. 272(b)

• The accused at a specified date and time, in the correct jurisdiction, sexually assaulted the victim; and
• The culprit threatened to cause bodily harm to a person who was not the complainant.

Sexual assault causing bodily harm s. 272(c)

• The accused at a specified date and time, in the correct jurisdiction, sexually assaulted the victim; and
• The accused caused bodily harm to the victim.

Sexual assault is covered under s. 271 of the Criminal Code

The actus reus of sexual assault is established by proof of three elements:

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

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

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. S. 265(3), provides guidance on what is not consent for all forms of assault and s. 273.1(2) provides guidance on what is not consent for the purposes of sexual assault.

The Guilty Mind (Mens Rea)

The mens rea for a sexual assault with a weapon charge under s. 272 include proving, beyond a reasonable doubt, that:

• The accused intended to touch the complainant sexually or was reckless or willfully blind to the lack of consent on the part of the complainant; and
• There was objective foreseeability of bodily harm. 

The case of R v Ewanchuk provided that the mens rea element for sexual assault is satisfied when the Crown is able to prove the accused’s intention to sexually touch the complainant.

Sexual assault is a general intent offence which 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.

For the objective foreseeability of bodily harm, R v Dewey held that the type of bodily harm that actually happened does not need to be foreseeable, just that bodily harm could occur in general. Furthermore, the mens rea has been described by R v E(A) as whether the accused “was reckless whether his acts caused bodily harm.”

Sexual Assault with a Weapon Defences

How to Beat a Sexual Assault with a Weapon Charge

Every case is different. The availability and strength of any defence depend entirely on the specific facts of your case. The strength of any available defence rests on the evidence against you and the precise details of the allegations. However, the following are some common defences that may be used when fighting a sexual assault with a weapon charge:

Factual innocence

A strong defence against a sexual assault with a weapon charge is to maintain that you are factually innocent. If you can show that the facts and the evidence do not support that you sexually assaulted the complainant and did not cause them bodily harm, then you may have a defence that you were factually innocent.

Honest but Mistaken Belief in Consent

A defence of ‘Honest but Mistaken Belief in Consent’ is a form of mistake of fact. If you honestly, but mistakenly, believed that you had the consent to perform the sexual activity on the complainant, then this may be a defence.

Ewanchuk stated that “in order to cloak the accused’s actions in moral innocence, the evidence must show that he believed that the complaint 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.”

No Sexual Contact

In order for the Crown to secure a conviction of sexual assault with a weapon, both the actus reus and 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 will not be satisfied.

Mistake in Identity

Depending on the circumstances of your case, a possible defence to a sexual assault with a weapon charge may be to raise an identity defence. In this case, for this defence to be raised successfully, you will have to prove that you were not the person who committed sexual assault with a weapon.

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. However, it is important to note that the complainant must have consented to all sexual touching at the time that the touching took place. For the purposes of s. 272, consent is not a defence to a charge of sexual assault causing bodily harm. Meaning someone cannot consent to bodily harm.

Any applicable Charter defences

The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s. 24(2) of the Charter.

Sexual Assault with a Weapon Punishments

The Criminal Code provides for a possible maximum term of life imprisonment for those convicted of a sexual assault with a weapon charge.

Persons found guilty of sexual assault with a weapon may be eligible for sentencing entailing a suspended sentence, stand-alone fine, custody, or custody with a fine or probation.

In addition to any immediate jail and/or probation sentence you receive for a conviction of sexual assault with a weapon, you will also be ordered to register with the National Sex Offender Registry in accordance with the National Sexual Offender Information Registry Act (SOIRA).

Frequently Asked Questions

What is sexual assault with a weapon?

Sexual assault is when someone commits a crime that is sexual in nature, without the consent of another person. For someone to be charged with sexual assault with a weapon, they must also be carrying a weapon or an imitation of a weapon when committing sexual assault.

What is the sentence for sexual assault with a weapon?

The maximum sentence for someone charged with sexual assault with a weapon is life imprisonment if the victim is under the age of 16. If the victim is older than 16 and a restricted firearm is used in the commission of the offence, the maximum sentence is 14 years with a minimum sentence of 5 years. Finally, in the case where a firearm is used in the commission of the offence, the maximum sentence is 14 years with a minimum of 4 years imprisonment.

What are the 3 levels of sexual assault?

The three levels of sexual assault in Canada are:

• Sexual assault, 271 of the Criminal Code;
• Sexual assault with a weapon, threats to a third party or causing bodily harm, 272 of the Criminal Code; and
• Aggravated sexual assault, 273 of the Criminal Code.

Published Decisions

R v Lamy, 2002 SCC 25 (CanLii)

The accused was convicted at trial of sexual assault with a weapon and of anal intercourse. During the sexual assault, the accused penetrated the complainant with a sex toy. The Court of Appeal held that the trial judge erred in concluding that the forced introduction of an object into the complainant was sufficient to constitute sexual assault with a weapon and substituted a conviction of sexual assault.

The Supreme Court of Canada reversed the Court of Appeal’s decision and restored the conviction to sexual assault with a weapon.

You can read the full decision here.

R v Lee, 2010 SCC 52 (CanLII)

The accused appealed their conviction of sexual assault with a weapon and unlawful confinement. The accused forced the complainant into a sexual act at knifepoint. The accused alleged that the sexual act was consensual.

The Supreme Court upheld the accused’s conviction of sexual assault with a weapon.

You can read the full decision here.

R v J.A.A., 2011 SCC 17 (CanLII)

The accused was convicted of sexual assault and sexual assault with a weapon, both offences arising from an alleged confrontation with his wife. The accused testified that the sexual relations were consensual. During the sexual act, the accused’s wife alleged she had bitten one of the accused’s fingers very hard to defend herself.

Fresh evidence was introduced on appeal from a forensic dentist who concluded that the mark on the accused’s finger was not a bite mark, which undermined the trial judge’s reasons and verdict.

The Supreme Court allowed the appeal and ordered a new trial, stating that the fresh evidence should be admitted.

You can read the full decision here.