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.
When the police investigate sexual assault complaints, they will often look at several factors, such as which body part was touched, the nature and context of the contact, words and gestures accompanying the act, and any threats that were accompanied by force.
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.
The maximum sentence for sexual assault if the Crown elects to prosecute the sexual assault by indictment and the complainant is under 16 years of age is 14 years. There is a minimum punishment of 1 year jail. If the Crown elects to prosecute a sexual assault on a complainant under the age of 16 years summarily, the maximum sentence is 2 years less a day, and the minimum sentence is 6 months.
These mandatory minimums may or may not be in force, depending on jurisdiction, and time. It is important to contact a lawyer to fully understand the jeopardy and maximum and minimum punishments you may be facing if you are charged with sexual assault.
A conviction could also require the individual to be placed on the National Sex Offender Registry, and have his or her DNA taken for storage in the DNA databank.
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 is the best defence to a charge of sexual assault?
You can be found not guilty of sexual assault if you can show that the person consented, or that you honestly believed the person agreed and you took steps to be sure of that. There are exceptions to this rule if the complainant is under age, or you are in a position of trust.
In all cases, sexual assault law is technical and complex. It is always a good idea to seek legal advice if you have been charged with a sexual crime, or believe that you might be charged with one.
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.
- If the accused caused significant bodily harm to the complainant and the accused intentionally intended to cause significant bodily harm; or was wilfully blind or reckless to causing significant bodily harm; or acted in such a way that significant bodily harm was objectively foreseeable, then the complainant’s consent is legally invalid.
- Consent cannot be given in advance.
- 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.
This is also known as explicit communicated consent.
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).
- Distribution of Intimate Images without Consent: Publishing or making available an intimate image of a person, knowing that the person in the image did not give their consent to it being published (section 162.1 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. This should be done at the earliest possible opportunity.
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.