Introduction

Sexual assault is a broad and serious offence under the Criminal Code of Canada. It encompasses any non-consensual touching of an objectively sexual nature, ranging from seemingly “minor” acts, such as an unwanted kiss, or a pat on the posterior, to more egregious violations, including non-consensual intercourse. While some may intuitively perceive a hierarchy of seriousness based on the nature of the act, recent case law from British Columbia underscores that all sexual assaults are treated as serious offences.

The Principle That All Sexual Assaults Are Serious

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.” (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:

  1. Highly invasive, violative, and/or demeaning sexual conduct;
  2. Prolonged duration and/or repeated occurrences;
  3. Additional physical violence and/or physical injury;
  4. Administering drugs or alcohol to incapacitate the victim, or exploiting the victim’s incapacity;
  5. Threats and/or the use of a weapon;
  6. Persistence in the face of communicated non-consent, or acts intended to overcome resistance;
  7. More than one offender involved;
  8. Sexual assault in the presence of children;
  9. Violation occurring in the victim’s home;
  10. Planning and/or steps taken to facilitate the offence;
  11. Attempts to prevent disclosure or avoid detection;
  12. Age of the victim;
  13. A particularly vulnerable victim;
  14. Actual and reasonably foreseeable harms caused to the victim, including significant psychological or emotional impact; and
  15. 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

Recent decisions from the British Columbia Court of Appeal demonstrate a trend toward imposing significant custodial sentences for sexual assault convictions:

  1. R. v. Maslehati, 2024 BCCA 207: The court replaced an 18-month conditional sentence order (house arrest) with a 28-month term of imprisonment.
  2. 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.
  3. 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 illustrate a consistent trend: sentencing courts should not be permitting sexual assault offenders to serve sentences in the community.

Conclusion and 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.

At Filkow Law, our team of experienced sexual assault lawyers is equipped to navigate the complexities of sexual offences.