Lawyer expert in sexual assault in Montreal and Quebec City

a) Sexual assault (Sec. 271 CCC)

*Please note that the case law cited here comes from either the Cournoyer-Ouimet annotated Criminal Code, the Dubois-Schneider annotated Criminal Code, or our personal research.

In general, here are the elements that the prosecution must prove relating to the offence of sexual assault:

Actus reus; Identification; Assault (touching);

A demand from the accused to obtain gratification of a sexual nature from the complainant may, depending on the circumstances, constitute sexual assault (see R. v. Higginbottom, 2001 CanLII 3989 (ON CA));

The sexual nature of the contact;

All circumstances surrounding the conduct will be relevant for determining whether the touching was sexual in nature and whether it violated the sexual integrity of the complainant (see R. c. Litchfield, [1993] 4 RCS 333).

An objective test must be applied to determine whether the alleged conduct was sexual in nature. The intent and the motive of the person who committed the act are factors to consider, and their significance may vary based on the circumstances of each case. Other factors to consider are: (i) the body part touched; (ii) the nature of the contact; (iii) the situation in which this occurred; (iv) the words and gestures that accompanied the act; (v) all circumstances surrounding the conduct, including threats or the use of force (see R. c. V. (K.B.), [1993] 2 RCS 857).

The absence of consent;

To determine whether the complainant consented to the conduct in question, the nature of the relationship that existed between them and the accused should be considered.

The actus reus of the sexual assault is established by the evidence of three elements: (1) the touching, (2) the sexual nature of the contact, and (3) the absence of consent. The first two elements are objective. The absence of consent is purely subjective and is determined based on the subjective state of mind of the complainant with respect to the touching (see R. c. Ewanchuk, [1999] 1 RCS 330).

Mens rea

The mens rea of the sexual assault consists of two elements: (1) the intent to touch the person and (2) the knowledge of the absence of consent, or recklessness or wilful blindness in this regard (see R. c. Ewanchuk, [1999] 1 RCS 330).

Sexual assault is a crime of general intent. The prosecution does not have to establish the mens rea regarding the sexual nature of the assault because it is part of the actus reus (see R. c. Litchfield, [1993] 4 RCS 333).

Crime of general intent;

The penalty

Whoever commits sexual assault is guilty:

1. a) either of a criminal offense punishable by imprisonment for a maximum term of ten years,

the minimum penalty being one year if the complainant is under sixteen years of age;

1. b) or an offense punishable on summary conviction by imprisonment for a maximum term of eighteen months,

the minimum penalty being ninety days if the complainant is under sixteen years of age.

Relevant provisions

Inadmissibility of the complainant’s consent

150.1 (1) Subject to Paragraphs (2) to (2.2), when a person is charged with an offence under Sections […] or of an offence under Section 271, […] with respect to a complainant under sixteen years of age, the fact that the complainant consented to the acts forming the basis of the charge does not constitute a means of defence.

Marginal note: Exception — 12 or 13-year-old complainant

(2) When a person is charged with an offense under […] Section 271 with respect to a complainant aged twelve years or more but less than fourteen years, the fact that the complainant consented to the acts forming the basis of the charge constitutes a means of defence if the accused both:

1. a) is less than two years older than the complainant;
2. b) is neither a person in a position of authority or trust vis-à-vis the complainant nor a person in respect of whom the complainant is a dependent nor a person who is in a relationship where they are exploiting the complainant.

Marginal note: Exception — 14 or 15-year-old complainant

(2.1) When a person is charged with an offense under […] Section 271 with respect to a complainant aged fourteen years or more but less than sixteen years, the fact that the complainant consented to the acts forming the basis of the charge constitutes a means of defence if one of the following conditions is satisfied:

1. a) the accused both:

(i) is less than five years older than the complainant,

(ii) and is neither a person in a position of authority or trust vis-à-vis the complainant nor a person in respect of whom the complainant is a dependent nor a person who is in a relationship where they are exploiting the complainant.

1. b) the accused is married to the complainant.

Marginal note: Exception — transitional regime

(2.2) In a case where the accused referred to in Paragraph (2.1) is more than five years older than the complainant, the fact that the complainant consented to the acts forming the basis of the charge constitutes a means of defence if, as of the date that this paragraph enters into effect:

1. a) on one hand, either the accused is the complainant’s common-law partner or the accused has lived in a conjugal relationship with the complainant for less than one year and a child was born or will be born from their union;
2. b) on the other hand, the accused is neither a person in a position of authority or trust vis-à-vis the complainant nor a person in respect of whom the complainant is a dependent nor a person who is in a relationship where they are exploiting the complainant.

[…]

Marginal note: Inadmissibility of error

(4) The fact that the accused believed that the complainant was at least sixteen years of age at the time of the commission of the alleged offence only constitutes a means of defence against a charge filed under Sections […] 271 […] if the accused took all reasonable steps to determine the age of the complainant.

Marginal note: Ditto

[…]

Marginal note: Inadmissibility of error

(6) The accused may only invoke their error regarding the age of the complainant to avail themselves of a defence under Paragraphs (2) or (2.1) if they took all reasonable steps to determine the age of the complainant.