Sexual assault is a hybrid offence in which the Crown can choose to charge by an indictment or proceed summarily.
S.271 of the Criminal Code indicates the following:
Everyone who commits a sexual assault is guilty of
- (a) an indictable offence 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 offence 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.
For the purposes of sexual assault, assault is defined in s.265(1)(a) of the Criminal Code which states the following:
265 (1) A person commits an assault when
- (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
The case of R v Ewanchuck  1 S.C.R 330 (‘Ewanchuck’) provides the elements that the Crown has to prove, beyond a reasonable doubt, in order to convict an accused of sexual assault.
The elements of sexual assault are as follows:
- Touching (or threat of touching);
- Sexual nature of touching;
- Absence of consent; and
- The intention to touch the complainant.
Regarding the touching or the threat of touching, it must be voluntary. In relation to the sexual nature of the touching, this is determined by applying an objective test that asks how the reasonable person would view the conduct. Additionally, as indicated in the case of R v Dinardo,  S.C.C 24 the touch does not have to be on a sexual part of the body as the sexual element can arise from circumstances other than the manner in which the victim was touched.
The element of the absence of consent is subjective in nature. As discussed in Ewanchuck, this takes into account the complainant’s subjective, internal state of mind at the time of the alleged offence. S.265(3) of the Criminal Code provides what does not constitute consent, for the purposes of assault. Likewise, s.273.1(2) of the Criminal Code provides what is not considered consent for the purposes of sexual assault. The case of R v Hutchinson  S.C.C 19 provided a 2-step process to determine consent for sexual assault cases:
- Whether the complainant voluntarily agreed to engage in sexual activity in question;
- 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.
Lastly, in relation to the element of proving that the accused had an intention to touch the complainant since sexual assault is a general intent offence, all the Crown needs to prove is that the accused intended to touch the complainant. Ewanchuck indicated that this element can be satisfied by “the intention to touch or knowing of or being reckless or wilfully blind to the lack of consent on the part of the person touched.”
If the Crown is able to prove these elements, beyond a reasonable doubt, you may be convicted of a sexual assault charge. However, there may still be defences available to you.