Sexual assault is a serious offence under the Criminal Code of Canada. It is also a broad offence. Because it is defined as any non-consensual touching of an objectively sexual nature, the offence ranges from seemingly “minor” acts, such as an unwanted kiss or a pat on the bum, to the most egregious offences involving non-consensual intercourse. While some may consider some sexual assaults as “minor”, recent case law from the British Columbia Court of Appeal underscores that all sexual assaults are treated as serious offences.
What Is Consent under Canadian Law?
In Canada, the legality of any sexual activity depends on the voluntary agreement of all parties involved. This is known as “consent.” Engaging in sexual activity without obtaining consent, or after obtaining consent through unlawful means, is a criminal offence.
Consent can be commonly expressed verbally or by gesture. For example, saying “yes” is an expression of consent. Consent can also be expressed by actions that indicate agreement, such as the nodding of one’s head. Silence or a lack of resistance is not consent. Also, consent must be obtained for each separate act. Just because one party consents to kissing or oral sex does not mean they consent to intercourse.
The Age of Consent in Canada
In Canada, Parliament has set the general age of consent at 16 years old. This means that individuals below 16 years old cannot consent to sexual activity, with limited exceptions discussed below.
There are also specific situations where the age of consent is higher. If one person is in a position of trust, authority, or power over the other, the age of consent is raised to 18, not 16. Examples of these kinds of relationships include caregivers, step-parents, babysitters, or teachers. This higher age threshold was set to protect younger people from being exploited or coerced into sexual activities by those who may have significant influence or control over them.
Close-in-Age Exceptions for Sexual Activity
Canadian law recognizes that youths under 16 should be allowed to legally engage in sexual activity. To address this, Parliament wrote two “close-in-age” exceptions.
- 14 and 15-year-olds can legally consent to sexual activity with partners who are less than five years older than them.
- 12 and 13-year-olds can legally consent to sexual activity with partners who are less than two years older than them.
However, these exceptions do not apply where one person is in a position of trust, authority or power over the other. This means that a 14-year-old cannot consent to sexual activity with their 18-year-old babysitter, even though the 18-year-old is less than 5 years older. The close-in-age exception does not apply because the 18-year-old is in a position of trust over the 14-year-old as their babysitter.
Other Rules on Consent in Canadian Law
Each party must obtain consent. There is no obligation on a party to say “no”, to cry for help, or to call the police. Consent is not obtained if:
- Express Denial: A person says or does something to indicate they are not consenting to an activity.
- Withdrawal of Consent: A person shows through words or actions that they do not agree to continue an activity that has already started.
- Incapacity to Consent: A person is incapable of consenting to the activity. For example, they are unconscious or under the influence of drugs or alcohol to the extent that they cannot legally consent.
- Consent for Each Act: Consent was not obtained for each sexual act. A person may consent to some sexual acts but not others. For example, a person consents to kissing and oral sex but does not consent to intercourse; or a person consents to intercourse but not intercourse without a condom. Consent must be obtained for each specific sexual act.
- Abuse of Power: The consent is obtained through someone abusing their position of trust, power, or authority over the other person.
- Future Act: Consent must be given at the time of the sexual activity. It cannot be obtained in advance.
- Third-Party Consent: A third party cannot consent on behalf of another. For example, even if someone purports to consent to sexual activity on behalf of another person, no consent has been obtained in law. Consent must come directly from the person who will participate in the sexual activity.
- Fraud: A person gives consent when they are misled about important facts, such as the nature and quality of the act, the identity of the party, or the presence of any sexually transmitted illnesses.
- Violence or Threats: A person obtains consent by application of force or threat of the use of force.
Understanding the legal nuances of consent is critical for any sexual offence charge.
All Sexual Assaults Are Serious under Canadian Law
In R. v. Maslehati, 2024 BCCA 207, the British Columbia Court of Appeal articulated a clear principle: “It is now generally recognized that all sexual assaults are ‘serious’, irrespective of the nature of the physical acts involved.” (at para. 72). The court rejected the notion of categorizing sexual assaults as “minor” or “less serious,” emphasizing instead that distinctions should be drawn based on the circumstances of the offence. These factors include:
- The nature of the sexual contact;
- The duration of the act;
- The context in which it occurred; and
- The actual and reasonably foreseeable harms caused to the victim.
The court further explained that while the physical act itself is significant, the presence of aggravating circumstances (outlined below) elevates the objective gravity of the offence. Consequently, sentences must reflect the totality of the circumstances rather than the perceived severity of the physical act alone.
Aggravating Circumstances in Sexual Assault Cases
The decision in Maslehati provides a comprehensive, non-exhaustive list of aggravating factors that courts consider when determining the appropriate sentence for sexual assault. These factors include:
- Highly invasive, violative, and/or demeaning sexual conduct;
- Prolonged duration and/or repeated occurrences;
- Additional physical violence and/or physical injury;
- Administering drugs or alcohol to incapacitate the victim, or exploiting the victim’s incapacity;
- Threats and/or the use of a weapon;
- Persistence in the face of communicated non-consent, or acts intended to overcome resistance;
- More than one offender involved;
- Sexual assault in the presence of children;
- Violation occurring in the victim’s home;
- Planning and/or steps taken to facilitate the offence;
- Attempts to prevent disclosure or avoid detection;
- Age of the victim;
- A particularly vulnerable victim;
- Actual and reasonably foreseeable harms caused to the victim, including significant psychological or emotional impact; and
- Breach of trust.
The presence of even one of these aggravating factors weighs in favour of a custodial (prison) sentence.
Recent Case Law and Sentencing Trends in Sexual Assault Cases
Recent decisions from the British Columbia Court of Appeal demonstrate a trend toward imposing significant custodial sentences for sexual assault convictions:
- R. v. Maslehati, 2024 BCCA 207: The court replaced an 18-month conditional sentence order (house arrest) with a 28-month term of imprisonment.
- R. v. Hurley, 2024 BCCA 259: The appellant sought to replace a two-year custodial sentence with a conditional sentence order (house arrest). The court dismissed the appeal, affirming that a two-year prison term was at the “very lowest end of the range” for sexual assault against an adult prosecuted by indictment with aggravating circumstances.
- R. v. J.F.D.V., 2025 BCCA 4: The court substituted a conditional sentence order (house arrest) of two years less a day with a prison sentence of the same length, finding the original sentence demonstrably unfit.
These authorities not only illustrate a trend of increased sentences, but also that sentencing courts should not be ordering sexual assault offenders to serve sentences in the community.
The Sexual Assault Legal Implications for Accused Persons
Sexual assault is a profoundly serious offence with severe consequences. An accused person convicted of or who has pled guilty to sexual assault is almost invariably facing a significant custodial (prison) sentence. Non-custodial options, such as conditional sentence orders (house arrest), are exceedingly rare and typically reserved for exceptional cases with minimal aggravating factors and substantial mitigating factors.
Moreover, the proportion of sexual assault cases being prosecuted has increased significantly across Canada. This trend, coupled with stricter sentencing principles and the complexity of pretrial issues—such as applications related to text messages and prior sexual activity—underscores the importance of retaining experienced legal counsel.
Why Sexual Assault Trials Are So Complicated
In Canadian criminal law, sexual assault cases are complicated. This may be surprising because cases of simple assault, without the sexual component, are not usually complicated. It is precisely the “sexual” component that increases the complexity of these cases by a wide margin. There are a few reasons for this, most of which relate to the special rules of evidence involved.
Reason #1 – Prior Sexual History Evidence
The first reason for the complexity of sexual assault cases is that the defence cannot introduce evidence of any prior sexual history of the complainant without first getting permission from the trial judge. The reason for this is that, in the past, judges and juries would sometimes find an accused not guilty of sexual assault because they thought the complainant’s prior sexual history made them more likely to have consented to sexual activity during the incident or made their testimony less worthy of belief. This is tied to old-fashioned notions that a woman who has had many sexual partners is somehow immoral or a person of bad reputation.
In Canada, we now call these ideas the “twin myths” of sexual assault. The idea that a woman consented to sex during an alleged sexual assault because she had previously consented to sex, either with others or the same person, is a discredited myth. Similarly, the idea that a woman is less worthy of belief because of her extensive sexual history (or more worthy of belief because of her chastity) is a disproven myth. Defence lawyers must get permission from judges before they can introduce the prior sexual history of complainants to guard against these legal errors.
The rule against introducing evidence of a complainant’s prior sexual history is strict. Even if the defence has no intention of bringing up this history to support the twin myths, that is not enough to get permission from the judge to introduce the evidence. The defence must also show that it is relevant to a central issue of the case, and that its admission is not outweighed by the danger to the proper administration of justice.
The strictness of the rule exists because the courts are also concerned about the privacy rights of complainants. The law wants to prevent a situation where a complainant is reluctant to report that they have been the victim of a sexual assault because their privacy might be invaded during the trial.
Applications to admit the prior sexual history of complainants into evidence are further complicated by the fact that they take place in two stages. At the first stage, called the screening stage, the defence must show that the evidence is capable of being admissible. At the second stage, the defence must show that the evidence is relevant to a central issue in the case. At this stage, the government appoints a lawyer to represent the complainant. That means the defence must argue against two lawyers at the second stage: the complainant’s government-appointed lawyer and the Crown prosecutor.
Reason #2 – Complainant Records
The second reason for the complexity of sexual assault cases is that the defence cannot introduce any record relating to a complainant without getting permission from the judge first. A “record” includes any personal information over which the complainant has a reasonable expectation of privacy. That includes emails, text messages, letters, social media messaging, or diary entries, as well as medical, counselling, education, employment, and social services records.
The first question is whether the defence has a record at all. The Crown is not required to disclose any recordsto the defence, even if they are relevant to the trial; they are only required to give notice that they are in possession of records. If the defence wants to see the content of those records, they must make an application to a judge.
If the defence is tendering evidence they have received from the accused , they must consider whether it is a “record” under the law. This is a choice that the defence must make. If they are wrong, then the judge may require the defence to make an application to introduce the evidence. If this happens in the middle of a trial, the defence risks not being allowed to introduce the evidence.
As with an application to admit the prior sexual history of a complainant, an application to admit a record in the possession of the accused takes place in two stages. There is a screening stage first, then a hearing if the defence is successful at the screening stage. The complainant has a lawyer appointed by the government, who may appear at the hearing and make submissions. Once again, the defence must argue for the admissibility of the complainant’s records against two lawyers: the complainant’s lawyer and the Crown.
Although some cases of sexual assault will not involve pre-trial applications from the defence to introduce evidence of the complainant’s prior sexual history or their records, most cases involve at least one of these applications. This is because most sexual assault allegations are made against someone who is known to the complainant, sometimes very well known (e.g., a prior romantic partner). The accused and the complainant will commonly have a prior sexual history of consensual sexual activity together and/or a documented history of communications together. Sexual assaults where the victim was randomly attacked on the street by a stranger are very rare.
Reason #3 – Lack of Consent is a Key Ingredient of Sexual Assault
Yet another reason why sexual assault trials are complicated is that a key ingredient in sexual assault offences is the lack of consent from the complainant. Violence resulting in cuts, bruises or broken bones is evidence of a lack of consent, however, sexual assault allegations frequently occur without any obvious physical evidence of violence.
Sometimes there is no dispute that the complainant and accused had sexual activity together. The only dispute is whether that sexual activity was consensual. In such cases, forensic evidence like matching the DNA of semen with the accused’s DNA might be irrelevant. It is only evidence of sexual activity; it is not evidence of a lack of consent. The question entirely becomes one of credibility and reliability. That means putting a microscope to every little thing that occurred between the complainant and accused before, during, and after the alleged sexual assault.
In some cases, the issue is the complainant’s capacity to consent. This can occur when the complainant was highly intoxicated by drugs or alcohol during the alleged sexual assault. The law says that a complainant is still capable of consenting to sexual activity while intoxicated, but there is a line where the complainant no longer has that capacity. To have the capacity to consent, a person must be capable of understanding four things:
- the physical act;
- that the act is sexual in nature;
- the specific identity of the complainant’s partner or partners; and
- that they have the choice to refuse to participate in the sexual activity.
If the accused had sexual activity with the complainant when they are incapable of understanding any of the above, they are guilty of sexual assault.
Trying to discern where the line between capacity and incapacity to consent from the complainant, and when that line may have been crossed, can be complicated. In some cases, the Crown and defence will both choose to call expert witnesses (toxicologists) who offer competing evidence about a complainant’s capacity to consent based on how much intoxicant a complainant consumed and how they reacted to it.
Contact Filkow Law if You Are Facing a Sexual Assault Charge
Our lawyers understand the legal nuances of a sexual assault allegation, from assessing the evidence and intent to challenging the Crown’s case and protecting your rights at every stage of the process. Whether you are being investigated or have been formally charged, obtaining early legal advice is essential.
If you or someone you know has been accused of a sexual offence in British Columbia, contact Filkow Law today. Our experienced team offers knowledgeable, confidential, and results-driven legal representation to help you achieve the best possible outcome.
