QUICK TAKEAWAY
Aggravated Sexual Assault, as stated in Section 273 (1) of the Criminal Code, is a charge applied when a complainant either suffers physical harm or experiences fear for their life during a sexual assault. This is more than the absence of consent; the prosecution must prove an intentional application of force resulting in significant bodily harm or imminent danger. Non-disclosure of HIV-positive status can also constitute aggravated sexual assault if it endangers a partner. This charge is always treated as an indictable offence, carrying strict penalties potentially up to life imprisonment, especially if a firearm is used, the offence is connected to a criminal organization, or if the victim is under 16. Convictions usually come with additional orders such as staying away from areas with minors and providing biometric data to relevant databases.
Table of Contents:
What is Aggravated Sexual Assault?
Section 273 (1) of the Criminal Code states that if you wound, maim, disfigure or endanger someone during a sexual assault you could be charged with aggravated sexual assault. This is more serious offence than sexual assault, as this charge is laid if the complainant is physically harmed or feared for their life, and there is a lack of consentVoluntary agreement to engage in an sexual act.
What is Needed to Convict
To make out the charges for aggravated sexual assault, it is not enough for the Crown to just show that the complainant did not consent to sexual touching. Instead, it also needs to be shown that the accused caused the complainant serious bodily harm, leaving them wounded, maimed, disfigured or fearing for their life.
Non-disclosure of an HIV-positive status can also be considered aggravated sexual assault. If you have unprotected sex without telling your partner of your status and you put them at risk of contracting HIV, you can be convicted of aggravated sexual assault.
In all cases, the Crown prosecutorLawyers who prosecutes charges on behalf of the Crown has to prove there was an intentional application of force and the knowledge that it could result in bodily harm. They also have to demonstrate the injuries were not trivial or temporary, but that the damage will be long-lasting or that the person’s life was in danger.
Treated as an Indictable Offence
Aggravated sexual assault is always an indictable offenceIndictable offences are more-serious criminal offences, meaning that the penalty upon conviction is more severe than with a summary convictionUsed for lesser offences.
Penalty for Aggravated Sexual Assault
Aggravated sexual assault is a strictly indictable offence with no conditional sentence available, and the Crown will seek a jail term upon conviction. The Code notes that if a firearm was used or if the offence is associated with a criminal organization, the maximum penalty is life in prison. A life sentence can also be given if the complainant is under the age of 16.
There are certain orders that accompany an aggravated sexual assault conviction. If the complainant is under 16, the judge may order that you stay away from the victim and their residence and not go to public parks, playgrounds or other areas where persons under the age of 16 years are reasonably be expected to be present. You may also be ordered to biometric information such as fingerprints to the National DNA Data Bank and provincial sex offender registries.
Insights from a
Defence Lawyer
CCH VERIFIEDCéline Dostaler
Insights from Ottawa Lawyer, Céline Dostaler
Strategies to Defend a Sex Assault Charge
- Honest but mistaken belief in communicated consent - this defence is based on the idea that the accused believed that the sexual contact was consensual, despite it not being so.
- Affirming that there was consent - the accused may argue that the sexual contact was consensual.
Denying the sexual contact - the accused may claim that no sexual contact took place. - Mistake in identity - this defence argues that the accused was unaware that the victim was not consenting because they thought they were engaging with someone else.
- The incident did not happen - either the alleged sex did not happen, or it did not lead to any injury.
- The Canadian Charter of Rights and Freedoms provides certain rights and protections to individuals, which may be applicable in a sexual assault case.
Click to Call Celine Dostaler: (613) 863-8595
Glossary of Legal Terms
Consent
The voluntary agreement of the complainant to engage in the sexual activity in question.
Crown prosecutor
Lawyers who act for the federal, provincial and territorial governments and prosecute people accused of crimes on behalf of the Crown.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
