Sexual Assault and Rape — What’s the Difference in Canada?
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Intro:
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.
“Rape” is no longer a legal term in Canada — it falls under
sexual assault
.
Sexual assault is divided into three levels: basic, with a weapon/bodily harm, and aggravated.
Penalties range from life imprisonment to the death penalty, depending on the severity and aggravating factors.
Common defences include consent, Charter rights violations, and procedural errors.
Early legal help is essential to protect your rights and build a strong defence.
Mass Tsang LLP has extensive experience successfully defending sexual assault cases.
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.
What Is Rape?
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:
Eliminated spousal immunity.
Omitted the concept that only men can commit rape.
Negated the need to prove vaginal penetration by the penis.
Expanded the concept of what constitutes sexual assault.
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.
Legal Definitions and Examples
Basic Sexual Assault:
Includes any intentional application of force or threat of force of a sexual nature without consent, such as unwanted touching or kissing.
Sexual Assault with a Weapon or Bodily Harm:
Includes assaults where a weapon is used or threatened, or where the victim suffers physical injury.
Aggravated Sexual Assault:
The most serious form, involving severe injury or threat to the victim’s life.
Aggravating Factors Influencing Penalties
The Criminal Code and courts recognize several aggravating factors which increase penalties:
Victim under 16 years of age.
Use of a restricted or prohibited firearm.
Use of a firearm associated with criminal organizations.
Prior convictions for sexual offences.
Degree of bodily harm caused.
Degree of violence or force used.
Abuse of trust or authority (e.g., teacher, caregiver).
Penetration during the assault.
Victim’s vulnerability (age, disability).
Psychological impact on the victim.
Forcible confinement during the assault.
Predatory sexual behaviour.
Repeat offences.
Offender’s attitude during proceedings.
Sexual Assault Penalties in Canada
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.
Expert Insight: Legal Defence Strategies
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:
Consent defence:
Proving that consent was given freely and knowingly.
Charter rights violations:
Challenging illegal arrest, search, or evidence gathering procedures under the Canadian Charter of Rights and Freedoms.
Procedural errors:
Pointing out flaws in police investigations, disclosure failures, or mishandling of evidence.
These defences require skilled analysis of police reports, witness statements, and forensic evidence.
What Defence Lawyers Do
The criminal defence team at Mass Tsang LLP has successfully defended
hundreds of sexual assault cases
. Our lawyers:
Conduct thorough audits of the evidence and charges.
Negotiate with prosecutors to reduce or withdraw charges where appropriate.
Provide strong courtroom representation during trials.
Protect clients’ Charter rights throughout the process.
Real Case Example
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.
Official Statistics and Context
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.
Why You Need Early Legal Assistance
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:
Protect your Charter rights.
Prevent unconstitutional evidence from being used.
Develop strategic defence plans tailored to your case.
Balancing Victim and Accused Rights
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.
Contact the Sexual Assault Defence Lawyers of Mass Tsang LLP
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.