Can the accused have mistaken consent?

Yes, an accused can honestly be mistaken about whether their partner has affirmatively communicated their consent. However, mistaken belief in consent is not a defence if the accused did not take reasonable steps in the circumstances known to him or her at the time to confirm that their partner was, in fact, communicating their consent.

What is the difference between sexual assault and aggravated sexual assault?

Aggravated sexual assault is a more serious type of sexual assault. An aggravated sexual assault (section 273 of the Criminal Code) is a sexual assault where the accused wounds, maims, disfigures, or endangers the life of the complainant. If convicted, an accused will typically receive a harsher sentence than for sexual assault, as the maximum sentence is life imprisonment.

What is the sex offender’s registry?

The National Sex Offender Registry is an electronic database administered by the RCMP that records the information of individuals convicted of sex crimes who are required by law to register. The registry includes personal information such as the offender’s name, date of birth, gender, main residence, secondary residence, phone numbers, employment information, vehicle information, identifying marks, photograph, height, weight, and the offence(s) for which the offender has been convicted. The registry allows police agencies to monitor convicted sex offenders and search the names in the database to identify possible suspects in the vicinity of a crime.

Why would someone be added to the sex offender’s registry?

An individual would be added to this registry if they are convicted of sexual assault, or another sexual offence, and the judge imposes a Sex Offender Information Registration Act court order at their sentencing. This is mandatory upon conviction for a sexual offence.

How long would someone be in the sex offender’s registry?

The length of time that an individual is required to remain on the registry is determined by the Criminal Code. This mandatory period of registration can range from 10 years to 20 years to life.

How does trust between the assaulter and victim affect a sexual assault charge?

If the accused counselled or incited the complainant to engage in the sexual activity by abusing a position of trust, power, or authority, any apparent consent the victim may have provided would be legally invalid. Common examples of trust relationships include student and teacher, guardian and child, employer and employee, and doctor and patient.

If a person is asked to take a polygraph test, is it illegal to deny?

No, a person cannot be compelled to take a polygraph test, and it is not illegal to deny giving a statement to police or to refuse to take a polygraph test. Section 7 of the Canadian Charter of Rights and Freedoms protects an accused person’s right to silence. Polygraph tests have no scientific validity and are not accepted in Canadian courts of law.

Sexual Assault Lawyers Edmonton

Sexual Assault Lawyers In Edmonton & Alberta

Are you being accused of sexual assault? Have you been charged with another sex crime? Sexual offence allegations are taken very seriously in Canada, many times resulting in a criminal charge even after a single sexual assault complaint. It’s extremely important to speak with an experienced criminal lawyer to understand your next steps, rights, and responsibilities.

Contact our lawyers today to book your consultation.

What is sexual assault?

Sexual assault as defined by the Criminal Code of Canada (section 271 of the Criminal Code) is touching, of a sexual nature, the body of another person without their consent, while knowing or being reckless about whether they are consenting.

Generally speaking, this means any unwanted sexual contact with another person. For example, this could include kissing without consent, groping without consent, digital penetration without consent, or any form of intercourse without consent.

Different Types Of Sexual Assault

Sexual assault causing bodily harm (section 272 of the Criminal Code): is sexual assault, during which the accused causes non-trivial bodily harm to the complainant or chokes, suffocates, or strangles the complainant.
Sexual assault with a weapon (section 272 of the Criminal Code): is sexual assault, during which the accused carries, uses or threatens to use a weapon or an imitation of a weapon.
Aggravated sexual assault (section 273 of the Criminal Code): is sexual assault, during which, the accused wounds, maims, disfigures, or endangers the life of the complainant.

Sexual Assault Conviction In Alberta

To be convicted of sexual assault, the Crown must prove beyond a reasonable doubt that:

The accused intentionally touched the complainant in a sexual way without their consent.
That the accused was aware or was reckless about whether the complainant was consenting.

There are many complicated areas of the law when it comes to sexual assault. If you’re facing conviction of a sex crime, we recommend getting in touch with one of our criminal lawyers as soon as possible.

What are the penalties of a sexual assault conviction?

The maximum sentence for sexual assault in Canada is 10 years’ imprisonment if the Crown elects to prosecute the sexual assault by indictment. The maximum sentence is 18 months imprisonment if the Crown elects to proceed summarily.

In Alberta, there is a starting point sentence of 3 years imprisonment for a major sexual assault. Major sexual assaults are those that involve penetration or serious psychological harm. This starting point sentence may be adjusted upwards or downwards depending on the aggravating or mitigating factors in each case. One such aggravating factor would be if the offender has previously been convicted of sexual assault.

For an accused who is convicted of less serious sexual assaults, the available penalties could include:

A short term of imprisonment
An intermittent term of imprisonment
Probation for sexual assaults is very rare

What defines consent in Canada?

Consent is the voluntary agreement of the complainant to engage in the sexual activity in question. Consent must be contemporaneously given. In other words, an accused must receive consent that has been communicated through actions or words for each individual sexual act, at the time the sexual activity takes place.

Even if the other person apparently consented, this consent can be considered legally invalid in certain circumstances. For example:

A complainant who is incapacitated by alcohol cannot legally consent.
A complainant who is unconscious cannot consent.
If the accused induces the complainant to engage in sexual activity by abusing a position of trust, power, or authority, the complainant’s consent is legally invalid.
If the complainant submits or does not resist by reason of the application of force or threat of force to any person, fraud, or the exercise of authority, the complainant’s consent is legally invalid.
Consent can be revoked at any time.

What is implied consent?

There is no concept of implied consent in Canadian law. An accused cannot rely on the complainant’s silence, passivity, or ambiguous conduct to assume they are consenting. As a matter of law, consent must be specifically renewed, and clearly communicated through words or conduct, for each sexual act.

Is the age of consent in Canada (16 years) different in Alberta?

The legal age of consent is 16 years of age across Canada, and the offence of sexual interference criminalizes any sexual touching of an individual under 16 years of age.

However, there are close-in-age exceptions to sexual interference in the Criminal Code. If the complainant was 12 or 13 years old, it is a defence that the complainant consented if the accused is less than 2 years older than the complainant and is not in a position of trust of authority. If the complainant was 14 or 15 years old, it is a defence that the complainant consented if the accused is less than 5 years older than the complainant and is not in a position of trust or authority.

Proving Lack Of Consent

The Crown will often prove lack of consent through the testimony of the complainant. Lack of consent is determined from the complainant’s subjective viewpoint. If the judge accepts the complainant’s testimony that they did not consent to the sexual activity, this is sufficient to prove lack of consent.

If the complainant is unable to testify about their lack of consent (e.g. they have no memory of the incident), the court will determine lack of consent by considering all of the evidence, including the complainant’s actions before, during, and after the incident.

Other Sex Crimes Listed In The Criminal Code Of Canada

Sexual interference: Intentionally touching a person under the age of 16 for a sexual purpose (section 151 of the Criminal Code).
Invitation to sexual touching: Inviting, counselling, or inciting a person under the age of 16 to touch themselves or anyone else for a sexual purpose (section 152 of the Criminal Code).
Exploitation: Touching a young person with whom the accused is in a relationship of trust for a sexual purpose (section 153 of the Criminal Code).
Voyeurism: Observing or recording an individual for a sexual purpose where that individual should have a reasonable expectation of privacy (section 162 of the Criminal Code).
Child pornography: Making, distributing, possessing, or accessing child pornography (section 163.1 of the Criminal Code). Child pornography refers to a photograph, film, video, or other visual representation featuring a person who is, or is depicted to be, a person under the age of 18.
Publication: Sharing of an intimate image without consent (section 162.1 of the Criminal Code).
Indecent acts: Acts in a public place or exposure of genital organs to a person under the age of 16 (section 173 of the Criminal Code).
Incest: Sexual intercourse with a person the accused knows is their blood-related parent, child, brother, sister, grandparent, or grandchild (section 155 of the Criminal Code).
Bestiality: Any penetration, for a sexual purpose, with an animal (section 160 of the Criminal Code).
Obtaining sexual services for consideration: Purchasing sexual services or communicating for the purpose of purchasing sexual services (section 286.1 of the Criminal Code).

Looking for a sexual assault lawyer in Edmonton or Alberta?

Sexual assault charges are complicated, stigmatizing, and false accusations do occur. This is why it’s incredibly important to hire an experienced criminal defence lawyer to not only reduce damage to your reputation but limit the negative consequences or possible charges.

If you are charged with sexual assault or any other sex crime in Edmonton or the surrounding area, call our criminal lawyers at 780-421-7001. We will fight for you, and we get results.