Assault is defined in s.265:
A sexual assault is an assault which violates the complainant's sexual integrity. Chase [1987] 2 S.C.R. 293.
For example, disciplining a child by grabbing his genitals may be a sexual assault, even though the assailant's purpose was not sexual. V. (K. B.) [1993] 2 S.C.R. 857. Similarly, searching a woman's vagina in a manner that humiliates her may be a sexual assault, even if the purpose of the search was not sexual. Nicolaou, 2008 BCCA 300.
A sexual assault does not require touching of a sexual part of the body if the circumstances of the assault are objectively of a sexual nature. For example, rubbing a young woman's tummy just under her breasts may violate her sexual integrity, even if the touching never reaches her breasts or vagina. Lutoslawski, 2010 ONCA 207.
Just as a common assault may be committed by the threat of an imminent application of force, so too may a sexual assault be committed without touching. A man who held a woman captive, and made her watch him masturbate committed a sexual assault. Edgar, 2016 ONCA 120.
A non-sexual assault does not become a sexual assault just because the complainant fears that she will be sexually assaulted. Robicheau, 2002 SCC 45
On the other hand, an assault on a naked woman may be a sexual assault
even though the assailant's purpose was not a sexual one. Larue,
2003 SCC 22
To prove sexual assault, the prosecution must prove that the complainant didn't consent. This is the state of mind of the complainant during the sexual interaction. If she loses consciousness, she can no longer consent. J.A., 2011 SCC 28; Dippel 2011 ABCA 129. If she was too intoxicated to consent, even if still conscious, then she didn't consent. Al-Rawi, 2018 NSCA 10.
This jolly video explains consent quite well.
For most sexual activity, only people 16 or older can consent. s.150.1. (The age of consent changed from 14 to 16 on May 1, 2008.) People aged 12-16 can consent to sexual activity with people close to their own age. See age of consent.
However, some relationships involve power imbalances which require special consent provisions:
Consent to an assault is not valid if obtained by force, threats of force, fraud or the exercise of authority. 265(3)
A woman does not truly consent if a man deceives her into believing he is her husband. Luddington, 2001 NSCA 29. A 14-year-old boy does not truly consent if the man in charge of him extorts his consent. Geddes, 2015 ONCA 292
People in positions of power do not obtain consent if they abuse the power to get the sex:
Because HIV infection so affects a person's life, failing to tell a partner of this risk before engaging in sex with them constitutes "fraud" (Cuerrier, [1998] 2 S.C.R. 371) unless there is no realistic possibility of HIV transmission. Mabior, 2012 SCC 47. People who have HIV have a duty to disclose. Boone, 2016 ONCA 227 When viral loads are low, and the partners use condoms, the risk of transmission may be so low, that the HIV sufferer may not need to disclose, even if he causes the victim great worries about her health when she later discovers his condition. Thompson, 2018 NSCA 13.
Mr Hutchinson,
2014 SCC 19 wanted to get his girlfriend pregnant, so he secretly poked
holes in condoms. She got pregnant. His trick similarly
constituted "fraud" because it exposed her to the significant bodily
changes of pregnancy - something he should have told her so that she
could decide whether to assent.
For the purposes of sexual assault, consent to sexual activity is not valid if (273.1):
Drunk people (and mentally handicapped people) can lawfully consent to sexual activity. A.A. 2001 Ont. C.A. Siddiqui, 2004 BCSC 1717. Unfortunately, the intoxicated ones often don't recall the event afterwards. Therefore:
Intoxication and lack of memory impose hurdles to proving lack of consent. Despite these hurdles, lack of consent has sometimes been proved even when the complainant had no memory of the assault. eg Bell, 2007 ONCA 320.
The complainant said that when she drank what Mr Fleming
2007 ONCA 808 poured, she suddenly felt weak, and groggy. She said
it felt different from the effects of alcohol. No analyst tested
her blood in time to find any date-rape drugs, but the complainant's
evidence sufficed to establish that they were there. Try for the
forensic evidence if you can. (I'm told you should freeze blood samples
immediately to preserve drug traces -- but don't take it from me.
Ask a forensic toxicologist.) But it may be possible to present
the case without forensic evidence.
Mr Lutoslawski,
2010 ONCA 207 acted as a kind of solo scout leader. He took
children who were over the age of consent camping. He and one of
them engaged in "consensual" sex. He never used his position of
authority to coerce the complainant to agree, but he may have abused his
position of authority in persuading her. This illustrates the
difference between s.265(4)
and s.273.1(2)(c).
Consent to sexual activity which is obtained by the abuse of
a position of trust, power or authority is not consent. (s.273.1).
A person in one of these positions who engages in consensual sexual
activity with someone between 16 & 18 commits the offence of sexual
exploitation. (s.153)
Examples:
Even a close family friend can be in a position of trust. Mr Budd, 2007 ONCA 722 was a suave, debonair Bay Street Lawyer. He befriended a woman and her three teenage daughters. He took the girls on trips to England and the USA. He had consensual sex with them. The court found that he was in a "position of trust" with respect to the girls, and therefore he was guilty of sexual exploitation.
The offences based on sexual assault are "general intent" offences - the accused is guilty if he meant to do the act.
Some offences are "specific" intent offences - the accused isn't guilty unless he had some specific prescribed purpose in mind.
Therefore, investigate what the suspect said and did before, during and after the incident to determine his purpose.
Mr Scullion, 2009 ABCA 291 touched the vagina of a sleeping 10-year-old girl. The trial judge accepted that he honestly believed that he was touching her mother. Should he be acquitted of sexual interference - s.151? What about sexual assault - s.271? On appeal the court found that his specific intent was to touch an adult, not a child. He was innocent of sexual interference. But he was likely guilty of sexual assault because he never got consent.
Injuries need not be serious to qualify as bodily harm.
Mr Moquin, 2010 MBCA 22 met a woman on a telephone chat line. Within weeks he was living at her house. He assaulted her several times leaving injuries. She complained of:
bruising lasting several weeks
a sore throat that lasted several days
a hand injury which prevented her from opening doors for a few days
The trial judge compared these to the effects of a common cold or sore
throat, and concluded these were not "bodily harm". The appeal
court disagreed. "Pain causing discomfort, if it is more than
trifling and transient, is sufficient, even if it does not impair a
person’s ability to function." These injuries sufficed to
establish bodily harm.
There remains some debate whether any specific intent to cause harm is
required for assault causing bodily harm. B.C. and Saskatchewan
says no. (Brooks,
Swenson)
Ontario and Alberta say yes. (K.P.,
Dewey).
For aggravated sexual assault, the risk of harm has to be objectively forseeable. Godin, [1994] 2 S.C.R. 484.
Although this defence is most common in stranger attacks, it also arises in cases involving young children abused in their beds at night. Evidence which often resolves this includes:
Defence ought to provide their alibi in sufficient time for you to
investigate it. Many times, this is only shortly before trial. You
have an obligation to investigate the alibi as best you can. If
you can't, explain to the Crown why.
Bald denials often ring hollow. Often the defendant will offer
reasons why the complainant might make a false allegation.
Collect and record what explanations you can. It does not matter
whether you believe what the suspect says. Every remark helps
get at the truth. Lies help prove he's a liar.
The law permits the defence to expose a complainant's motives to lie;
but the prosecutor can't ask the defendant "why would the complainant
lie about this?"
L.L., 2009 ONCA 413.
Ever since God asked Adam about the apple, offenders have been
finding someone to blame. Psychologists say that many sex
offenders "project" their desires. Rather than admit wanting sex
with the victim, the offender says or even believes the victim wanted
sex with the offender.
What words or conduct does the accused rely on?
Consent requires the freedom to say yes or no. In many
situations, the complainant lacks that freedom:
Consent also requires an appreciation of what's going on.
In two separate situations, Mr Ashlee
2005 ABCA 287 and Mr
Tookanachiak 2007 NUCA 1 engaged in sexual activity with women
who were unconscious. In both cases, the courts found that the
Crown did not need to prove whether the complainant consented before
the activity occurred. Once she lost consciousness, she was no
longer consenting, and the sexual assault was complete. However,
there remains a defence. If she consented before passing out,
the accused might not notice, and therefore mistakenly believe that
she was still consenting.
Mr J.A.,
2011 SCC 28and his girlfriend claimed that they often engaged in
bondage and erotic asphyxia - he would choke her to unconsciousness
during sex. She said she consented to being choked to
unconsciousness. She left unsaid whether she consented to his
continuing sexual acts with her while she was unconscious, and so the
trial judge took this to mean she could have consented. He
argued that she consented to the sexual acts in advance, like one can
consent to a surgical operation before the anaesthetic. The
majority found that wasn't good enough. Once she lost
consciousness, her consenting stopped.
Consent includes knowing who your sexual partner is. Mr Crangle, 2010 ONCA 451 had an identical twin brother. He partied at his brother's place, and his brother's girlfriend got drunk and went to bed. Mr Crangle admitted he slipped into his brother's bed, and silently had sex with her. When the lights came on, she figured out who he was and got mad. He said she consented. She said she didn't. The judge didn't really decide the credibility issues because even on Mr Crangle's version, he had sex with her without letting her know who he really was. Therefore, she didn't consent to have sex with him.
Similarly, Mr Dippel 2011 ABCA 129 climbed into the bed of a sleeping woman he barely knew, and proceeded to touch her sexually. He knew she couldn't know who was in bed with her, therefore she couldn't consent to his approaches.
Courtship often involves ambiguous communication. Some suspects
argue that they merely misunderstood the complainant. At law, if
the offender mistakenly believed she consented, it must be an honest
mistake, based actions which reasonably explain the mistake. For
example, no matter how drunk he is, if she removed her coat after
coming into her apartment, he can't reasonably claim that he thought
she wanted intercourse. On the other hand, if she strips naked
in front of him, he may reasonably infer that she was willing to share
her sexuality with him.
Marriage is neither perpetual consent nor does it found a reasonable belief in perpetual consent. R. v. V.(R.) (2004 Ont C.A.)
Many sexual acts with young children are offences whether or not the
child consents. s.150.1
Sometimes, the defence suggests that the acts occurred at a time when
the complainant was old enough to consent. This opens the door
to defences of consent or mistaken belief in consent.
When the the suspect is between 12 and 21 and not more than two [or five] years older than the complainant under 14 [or 16], consent may be a defence, but not if the accused was in a position of trust or authority, or the complainant was dependent upon him. s.150.1.
If the suspect honestly believed the child was older and the child
consented, then he has a defence. But the legislation requires
him to take reasonable steps to figure out the child's age. s.150.1(4)
& (6).
In Levigne, 2010 SCC 25, the court renewed its commitment to this language. The accused has a duty to act.
When people come in close proximity, bodies sometimes touch
accidentally. Was it really an accident?
The offender may claim to have been too drunk or high to intend what
he did. In Daviault [1994]
3
S.C.R.
63,
the
court
accepted
this
could
be
a
defence,
but
Parliament
responded
by
enacting
s.33.1,
which holds the offender liable for general
intent offences involving assault or violation of the sexual
integrity of the person.
Intoxication therefore works as a defence for "specific intent"
offences involving, but not for "general intent" ones:
| Specific Intent |
General Intent |
| 151
- touching for a sexual
purpose 152 - invitation to touch for a sexual purpose 153 - touching for a sexual purpose |
271
- sexual assault |
Some doctors will tell you that it's possible for a person to engage in sexual activity in their sleep. Like sleepwalking. Hartman, 2015 ONCA 498.
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