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Sexual Assault and Rape — What’s the Difference in Canada?

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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.

Not that rape is legal; as an offence, it’s addressed by the umbrella term sexual assault, which includes all non-consensual activity that interferes with a person’s sexual integrity. However, this might beg the question as to whether generalizing rape with other forms of sexual assault — like, say, unwanted touching or kissing — weakens or strengthens the severity of the offence under the law.

With extensive experience defending Greater Toronto Area clients from sexual assault charges, the sexual assault defence lawyers of Mass Tsang can explore this question. Read on to learn why the Code does not explicitly classify rape as a criminal offence and what differentiates rape from sexual assault in Canada.

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.

Sexual Assault Defined by the Criminal Code

Instead of specifically defining sexual assault, the Criminal Code categorizes it as any form of assault committed with sexual intent. Thus, if police believe that any of the three types of assault — assault; assault with a weapon, threats to a third party or causing bodily harm; and aggravated assault — were sexually influenced, it will be charged as a “sexual assault“. The penalties for the respective sexual assault charges are far more severe than they are for assault and, in some situations, carry mandatory minimum prison sentences.

While not named, an act of rape can fall under any sexual assault category. Let’s take a closer look at the categories.

The lowest level of sexual assault is commonly called basic or simple sexual assault by police and lawyers, though most victims probably don’t think it’s so simple. Police lay charges for this level of sexual assault for three separate reasons when the acts are committed with a sexual purpose (rape and attempted rape would fall under the first two):

  • Direct or indirect non-consensual application of intentional force to another person.
  • An attempt or threat, by act or gesture, to apply force to another person, provided there is a reasonable belief that the offender can carry out the action.
  • Openly wearing or carrying a weapon or imitation of one while accosting or impeding another person.

The second tier — sexual assault with a weapon, threats to a third party or causing bodily harm — expands on the first type of sexual assault, with Section 272 (1) of the Code naming five actions that elevate the charge:

  • The carrying, use, or threat to use a weapon or imitation of one.
  • Threats to cause bodily harm to a person other than the victim.
  • Physical harm to the victim.
  • Choking, suffocating, or strangling of the victim.
  • Is an accomplice to the offence.

The Code succinctly describes third-tier aggravated sexual assault as one in which the accused wounds, maims, disfigures, or endangers the life of the victim.

Sexual Assault Penalties

Absent aggravating factors, a conviction for basic sexual assault carries a maximum penalty of 10 years imprisonment as an indictable offence or 18 months when charged as a summary one. The level two and three sexual assault categories are solely charged as indictable offences and carry a possible maximum life imprisonment sentence and potential mandatory minimum sentences depending on aggravating factors.

Aggravating factors listed by the Criminal Code include:

  • Victim under age 16.
  • Use of a restricted or prohibited firearm.
  • Use of any firearm in association with a criminal organization.
  • The commission of prior sexual offences.
  • The commission of specific firearms offences.
  • Repeat offences for higher-level sexual assaults that involve firearm use.

Court precedents have established additional aggravating factors that judges have the discretion to consider when determining appropriate punishment. These include:

  • Extent of bodily harm.
  • Extent of force or violence used.
  • Abuse of trust, power, or authority.
  • Penetration during the assault.
  • Victim’s vulnerability.
  • Impact on the victim.
  • Forcible confinement during the assault.
  • Predatory sexual behaviour.
  • Being a repeat offender.
  • Offender’s attitude.

Consult the Sexual Assault Defence Lawyers of Mass Tsang

No matter what it’s called — rape, forced intercourse, non-consensual sex, sexual violence, etc. — you do not want to be convicted of sexual assault. Just because our legal system no longer calls it rape doesn’t mean that punishment has become more lenient. While convicted offenders no longer face a whipping, potential imprisonment for life remains in play.

If police have charged you with sexual assault in the Greater Toronto area, secure a robust defence with the legal team at Mass Tsang. We have a stellar record of successfully defending 100s of clients against sexual assault charges. To begin strategizing your defence, contact us for a free initial consultation.



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