For the purposes of this offence, consent refers to the complainant’s voluntary agreement to participate in the act in question. In Canada, the age of consent to sexual activity is sixteen, but a person cannot consent to sexual activity with someone who is in a position of trust or authority over them until they are 18 years old.
In order for consent to be legitimate it has to be clear and explicitly communicated either through words or actions, and it has to be present consent. Present consent means consent to the sexual acts as they are happening. This means that it is not a defence to say that the complainant consented in the past and therefore consents to sexual acts with you in the future. Further, silence and passivity do not amount to consent, so there is no such thing as implicit consent. Otherwise said, you cannot allege that the other person consented simply because they did not say no or clearly object in some other way.
The Criminal Code also clearly identifies specific situations where consent will not be recognized:
- The complainant, having consented to the sexual activity, expresses, by words or conduct, that he or she wishes to stop engaging in the activity but you do not listen;
- The complainant is incapable of consenting, for example, because they are passed out or simply too drunk to consent;
- If the consent was given by someone other than the complainant;
- If the complainant consented to the sexual activity but was induced to engage in it by a person in a position of trust, power, or authority;
- When consent was obtained by threats or violence; and,
- When the person clearly indicates they do not consent either through words or actions.
It is important to note that when evaluating whether or not consent existed between the parties at the time of the offence, the Court will consider consent from the perspective of the complainant, not the perspective of the accused.
The Penalty for Sexual Assault in Canada:
Depending on the nature of your charge, a conviction for sexual assault can result in a range of sentences. Generally, if convicted of sexual assault you will be liable for a sentence of imprisonment of up to 10 years. The severity of your sentence will dramatically increase if you are charged with a more serious offence like sexual assault causing bodily harm, sexual assault with a weapon, or sexual assault of someone under the age of 16. For example, if the victim of the assault is under the age of 16 years, you will automatically face a minimum of 1 year in prison with a maximum of 14 years. If you are found guilty of sexual assault with a weapon, or of sexual assault causing bodily harm you will face a maximum of 14 years. If the weapon happened to be a firearm, you will automatically face a minimum of 4 years in prison. If you are convicted of aggravated sexual assault you can face a sentence of up to life in prison, and a minimum of 4 years if you used a firearm when committing the offence.
A sexual assault conviction is one of the most serious convictions you can have on your criminal record. Not only will you have to face a heavy penalty if convicted of the crime, but you will also have to contend with a number of serious consequences following your conviction. Specifically, if convicted you will likely face ancillary orders like a mandatory surrender of your DNA to a national DNA bank, mandatory registration as a sex offender, and may also be subject to a firearms and weapons prohibition. Further, you can expect that your employment prospects will be limited following your conviction, and that you will also face incredible challenges when crossing the border between Canada and the United States. As such, if you have been charged with sexual assault, it is extremely important that you contact a criminal defence lawyer right away. We can immediately start working on your case and help you build the strongest defence possible.