While “rape” is still used in everyday language, Canadian law no longer recognizes it as a separate offence. Instead, all non-consensual sexual acts fall under the umbrella of sexual assault. This article explains the legal definitions, penalties, and defence strategies you need to know if you're facing charges.
Key Takeaways
You might be surprised to learn that “rape” is not listed as a criminal offence in Canada’s Criminal Code. In fact, you won’t find the word anywhere in the Code, and police agencies such as the Royal Canadian Mounted Police refrain from using it.
This absence is intentional — Canadian law treats all non-consensual sexual acts under the broad umbrella term “sexual assault”. This legal framework reflects a modern understanding of sexual violence and aims to ensure equal protection regardless of gender, relationship status, or type of sexual activity.
Rape is commonly defined as forced sexual intercourse or penetration of the vagina or anus with a sex organ or object without consent. Under Canadian law, rape was a Criminal Code offence until its removal with 1982 amendments that replaced it with the sexual assault offence. The previous rape offence was defined under Section 143 of the Code as:
“A male person commits rape when he has sexual intercourse with a female person who is not his wife,
(a) without her consent, or
(b) with her consent if the consent
(i) is extorted by threats or fear of bodily harm,
(ii) is obtained by personating her husband, or
(iii) is obtained by false and fraudulent representations as to the nature and quality of the act.”
As a strictly indictable offence, rape carried a maximum punishment of “imprisonment for life and to be whipped.” Section 145 added that attempted rape is an indictable offence that carried a maximum penalty of 10 years in prison and a whipping.
The Code was primarily revised to emphasize that the offence of rape, though sexually related, is a crime of violence. The revisions also:
Jeff Mass , Managing Partner at Mass Tsang LLP, explains:
“The Criminal Code reforms recognized that sexual violence is not limited to penile-vaginal intercourse, nor only perpetrated by men. The shift to ‘sexual assault’ as an umbrella term reflects a more inclusive and realistic approach to the law.”
The Criminal Code defines sexual assault broadly as any assault committed with a sexual purpose or intent, as outlined in Sections 271 , 272 , and 273 . This definition covers a broad spectrum of sexual violence, from unwanted touching to violent sexual attacks.
Sexual assault charges are divided into three categories based on severity and circumstances:
| Category | Description | Criminal Code Section | Maximum Penalty |
|---|---|---|---|
| Basic Sexual Assault | Non-consensual application of force with sexual purpose, including attempts or threats of such force. | Section 271 | Indictable: up to 10 years; Summary: 18 months |
| Sexual Assault with a Weapon or Causing Bodily Harm | Sexual assault involving a weapon, threats to a third party, or causing bodily harm to the victim. | Section 272 (1) | Indictable: up to life imprisonment |
| Aggravated Sexual Assault | Assault causing wounding, maiming, disfiguring, or endangering the life of the victim. | Section 273 | Indictable: up to life imprisonment |
This tiered system enables the Crown to charge offences with appropriate gravity, taking into account the facts of the case.
The Criminal Code and courts recognize several aggravating factors which increase penalties:
| Sexual Assault Type | Maximum Sentence | Notes |
|---|---|---|
| Basic Sexual Assault (Section 271) | 10 years (indictable) / 18 months (summary) | Most commonly, sentencing depends on circumstances. |
| Sexual Assault with a Weapon or Bodily Harm (Section 272) | Life imprisonment | Mandatory minimums may apply depending on factors. |
| Aggravated Sexual Assault (Section 273) | Life imprisonment | Most severe charge, reflecting grave harm or risk to life. |
Robbie Tsang , Defence Lawyer at Mass Tsang LLP, notes:
“Contrary to popular belief, many allegations don’t make it to trial. We identify breaches of the accused’s rights or procedural errors that can lead to case dismissal or evidence exclusion.”
Common defence strategies include:
These defences require skilled analysis of police reports, witness statements, and forensic evidence.
The criminal defence team at Mass Tsang LLP has successfully defended hundreds of sexual assault cases . Our lawyers:
In one recent case, the charges against our client were dropped after we successfully argued that evidence obtained during an illegal search violated their Charter rights. This led to the exclusion of key prosecution evidence, demonstrating the importance of early and expert legal intervention.
According to Statistics Canada, reports of sexual assault rose by 38% between 2017 and 2022. This increase primarily reflects higher reporting rates due to growing social awareness, rather than an actual increase in offences.
Understanding these trends is essential for both victims and accused individuals navigating the legal process.
The earlier you consult a criminal defence lawyer after being charged with sexual assault, the better your chances of mounting an effective defence. Early involvement allows lawyers to:
The Canadian legal system strives to balance the rights of victims with the presumption of innocence for the accused. While the victim’s statements are critical, the Crown prosecutor independently evaluates evidence before pursuing charges.
No matter what it’s called — rape, forced intercourse, non-consensual sex, sexual violence — you do not want to be convicted of sexual assault. Although the legal term “rape” no longer exists in Canada’s Criminal Code, the penalties remain severe, including the possibility of life imprisonment.
If you are charged with sexual assault in the Greater Toronto Area, contact Mass Tsang LLP for a free initial consultation. Our experienced team has successfully defended hundreds of clients, and we are ready to help protect your rights.
