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2.
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This section applies to
all forms of assault, including sexual assault, sexual assault with a weapon,
threats to a third party or causing bodily harm and aggravated sexual assault. |
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3.
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For the purposes of this section, no
consent is obtained where the complainant submits or does not resist by
reason of |
| |
a.
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the application of
force to the complainant or to a person other than the complainant;
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b.
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threats or fear of
the application of force to the complainant or to a person other than
the complainant: |
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c.
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fraud;
or |
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d.
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the exercise of authority.
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4.
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Where an accused alleges that he believed
that the complainant consented to the conduct that is the subject-matter
of the charge, a judge, if satisfied that there is sufficient evidence and
that, if believed by the jury, the evidence would constitute a defence,
shall instruct the jury, when reviewing all the evidence relating to the
determination of the honesty of the accused's belief, to consider the presence
or absence of reasonable grounds for that belief. |
| S.267: Assault
with a Weapon or Causing Bodily Harm. |
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Every one who in
committing an assault; |
|
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a.
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carries, uses or
threatens to use a weapon or an imitation thereof, or |
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b.
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causes bodily harm
to the complainant, |
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| is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten years or
an offence punishable on summary conviction and liable to imprisonment for
a term not exceeding eighteen months. 1994, c. 44 s. 17. |
| S.268:
Aggravated Assault - Punishment. |
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1.
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Every one commits
an aggravated assault who wounds, maims, disfigures or endangers the
life of the complainant. |
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2.
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Every one who commits
an aggravated assault is guilty of an indictable offence and liable
to imprisonment for a term not exceeding fourteen years. |
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| S.271:
Sexual Assault - No defence. |
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1.
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Every one who commits
a sexual assault is guilty of; |
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a.
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an indictable offence
and is liable to imprisonment for a term not exceeding five years;
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OR |
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b.
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an offence punishable
on summary conviction and liable to imprisonment for a term not exceeding
eighteen months. |
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c.
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[Repealed R.S. 1985,
c. 19 (3d Supp.), s. 10.] RS 1985, c. 19 (3d Supp.), s. 10; 1994,
c. 44, s. 19. |
|
| S.272: Sexual
Assault with a Weapon; Threats to a Third Party or Causing Bodily
Harm. |
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Every one who, in
committing a sexual assault; |
|
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a.
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carries, uses or
threatens to use a weapon or an imitation thereof, |
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b.
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threatens to cause
bodily harm to a person other then the complainant, |
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c.
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causes bodily harm
to the complainant, or |
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d.
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is a party to the
offence with any other person, is guilty of an indictable offence
and liable to imprisonment for a term not exceeding fourteen years.
|
|
| S.273: Aggravated
Sexual Assault - Punishment. |
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1.
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Every one commits
an aggravated sexual assault who, in committing a sexual assault,
wounds, maims, disfigures or endangers the life of the complainant.
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2.
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Every one who commits
an aggravated sexual assault is guilty of an indictable offence and
liable to imprisonment for life. |
| S.273.1: Meaning
of "Consent" - Where No Consent Obtained - Subsection (2) Not Limiting.
|
|
1.
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Subject to subsection
(2) and subsection 265(3), "consent" means, for the purposes of sections
271, 272 and 273, the voluntary agreement of the complainant to engage
in the sexual activity in question. |
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2.
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No consent
is obtained, for the purposes of sections 271, 272 and 273, where;
|
|
|
a.
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the agreement is
expressed by the words or conduct of a person other than the complainant;
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b.
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the complainant is
incapable of consenting to the activity; |
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c.
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the accused induces
the complainant to engage in the activity by abusing a position of
trust, power or authority; |
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d.
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the complainant expresses,
by words or conduct, the lack of agreement to engage in the activity;
or |
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e.
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the complainant,
having consented to engage in sexual activity, expresses, by words
or conduct, a lack of agreement to continue to engage in the activity.
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3.
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Nothing in subsection
(2) shall be construed as limiting the circumstances in which no consent
is obtained. 1992, c. 38, s. 1. |
| S.273.2: Where
belief in Consent Not a Defence. |
| It is
not a defence to a charge under section 271, 272 or 273 that the accused
believed that the complainant consented to the activity that forms
the subject-matter of the charge, where |
|
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a.
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the accused's belief
arose from the accused's |
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l
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self-induced intoxication,
or |
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ll
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recklessness or
willful blindness; or |
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b.
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the accused
did not take reasonable steps, in the circumstances known to the accused
at the time, to ascertain that the complainant was consenting. 1992,
c. 38, s. 1. |
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Sexual
Assault Charges & Possible Sentencing Outcomes
|
| The Criminal Code
sets out the sentencing options available to the judge at the sentence
hearing. The following is a list of sentences in the Criminal Code.
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Absolute Discharge
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Conditional Discharge
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Suspended Sentence
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Fines |
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Jail |
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Probation |
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ABSOLUTE
AND CONDITIONAL DISCHARGE
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| An absolute or conditional
discharge may be imposed on a guilty individual if the offence is
seen as minimal. The absolute or conditional discharge may be considered
if it is in the best interest of the accused and not unfavourable
to society. The absolute discharge means no conditions will be imposed.
The conditional discharge (some conditions will be imposed, such as
probation) can be as long as three years. |
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SUSPENDED
SENTENCE
|
| A suspended sentence
means the judge does not impose a sentence. The judge decides to impose
a probation order. If the accused fails to follow the probation order,
the judge may sentence on the original charge plus a separate charge
of willful failure to comply with a probation order. |
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FINES
|
| A judge may sentence
the accused to a monetary penalty. A fine can be imposed with other
forms of penalty. Both the ability to pay and the nature of the offence
are considered by the judge. |
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JAIL
|
| The Criminal Code
sets maximum periods of jail time for various offenses. Factors that
influence the incarceration sentencing are: |
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the age of the accused;
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whether this is the
accused's first offence; |
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the prior criminal
record of the accused; |
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the legal status;
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the mental status;
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whether the crime
was planned and deliberate; |
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the criminal activity
over a period of time; |
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the magnitude, impact
and profitability of the crime; |
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the violence and
the use of weapons; |
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the character and
conduct of the survivor; |
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the passage of time
after the offence; |
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whether the accused
pleaded guilty; |
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whether the accused
volunteered to make restitution; |
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accused's progress
toward rehabilitation; |
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accused's co-operation
with authorities. |
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PROBATION
|
| The purpose of the
probation is to provide an individual convicted of a criminal offence
the chance to rehabilitate himself/herself, without being sent to
prison. Probation orders allow the courts to monitor the accused and
demand the accused abide by certain conditions. Probation is a restraint
on the accused. If the accused breaches the terms of his/her probation,
s/he will likely be sent to jail. |
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