Table of contents:
- What you must know about sexual assault and sentencing in Canada
- Factors determining the severity of sentence for sexual assault in Canada
- Mitigating factors
- Aggravating factors
- What is the lease sentence for sexual assault in Canada by law?
- The Nature of Discharges
- Dealing with severe sentencing for sexual assault in Canada
- Get Sound Legal Advice from MassTsang!
The Canada Criminal Code tells us that sexual assault is “any unwanted sexual act done by one person to another or any sexual activity done without a person’s consent or without their voluntary agreement”. Just take a good look at this and you will see that the window is very wide. Actions can easily be tagged sexual and consent can easily be denied (since we do not sign consent forms before kissing or touching anyone). So, it isn’t strange to find many persons caught in the sexual assault web. What is the way forward, what should be expected and what we must do
One thing you must keep in mind is that sexual assault is a very serious allegation. Trials involving them are extremely complex bringing many factors to play. The truth is that it is best to avoid matters of this kind; but if you are reading this it means something happened, right? Or perhaps you are here for research purposes. Either way, here is a complete guide of the least sentence for sexual assault in Canada, and what you should know about it. Kindly read on and contact us if you have any more questions.
What you must know about sexual assault and sentencing in Canada
The minimum or least sentence for sexual assault in Canada depends on the nature and the extent of the allegation against you. It could run into years, based on the facts on ground, the alleged victim (for example if it involves a minor) or the extent of the assault. If anyone has been charged for a sexual crime the first thing to do is to contact a criminal defence lawyer in order to get the best possible result.
Factors determining the severity of sentence for sexual assault in Canada
There are certain mitigating factors which can reduce the sentence for sexual assault and likewise, certain factors that are capable of aggravating it. For example, the age of the accused, the plea of the accused (if a plea of guilty is entered early), whether or not the accused is a first-time offender, etc. Where all of the above clicks, there are chances of having a reduced sentence for a sexual assault. The aggravating factors on the other hand are numerous and outweigh the mitigating ones and can also result in more severe sentencing/penalty for sexual offence.
- Where the accused is a first-time offender, he/she is likely to receive a reduced sentence
- Where the accused person is a minor, the case may take another turn entirely seeing that he/she is a juvenile.
- Where a plea of guilty is entered early, the judge may consider a reduced sentence because it shows remorsefulness and saved valuable court time (however, do not enter a plea of guilty until you have had extensive legal consultation with your lawyer and he/she advises so).
- How old is the victim? for example, if the victim is a minor there is a likelihood of having a more severe sentencing.
- Does the accused know that the victim is a minor? This can also affect the sentencing. Where a person accused of sexual assault knows that the victim is a minor, the sentence may be aggravated, where he is unaware, it may not serve as an aggravating factor. Of course, this will depend on how well your lawyer is able to prove those facts in court and the facts surrounding the assault.
- How vulnerable is the victim? The law is perceived to be for all, but it must protect the vulnerable who are likely to be abused more than the strong who can cater for themselves. Where the victim is vulnerable and placed under undue influence, the punishment is likely to be more severe than where it involves adult and capable persons. For example, a sexual assault on a physically challenged person.
- What is the degree of violence involved? Thirdly, a factor affecting sentence for sexual assault in Canada is the degree of force used by the accused person. Where force involved is high, and the victim sustained injuries, it may aggravate the sentence.
- Is the offender in a position of authority? Canada judges are strict with abuse of power and where the accused person occupies the place of power and sexually assaults someone, it is likely to have an aggravating effect on the sentence.
- The use of weapon? If a weapon is involved, then the force is likely to be high and there may be an aggravated sentence.
- Was there penetration? If yes, then sentence will be aggravated. Penetration takes the case unto another level and can affect the accused person’s case negatively.
- Likelihood of committing the same offence. If the offender is a first-time offender, he may not have an aggravated sentence, but where is he a recurring offender, the sentence for sexual assault may be aggravated (especially where his previous offence was also sexually related).
What is the lease sentence for sexual assault in Canada by law?
Please know that although judges can exercise discretion, there are limits to it. Judges can exercise discretion only to the extent the law permits them. Meaning that they may only sentence within the range allowed, they cannot sentence below the minimum penalty for the offence.
If the victim is less than 16 years, and the case is serious or where it is prosecuted by the Crown Attorney as an indictment, it may extend to 14 years in jail.
So, generally, for a sexual assault offence where the accused has been found guilty and convicted, the minimum sentence that can ensue is one year and the maximum is 14 years, but within that margin, the nature and circumstances of the case will determine what you get.
Where the victim/ complainant is 16 years and above and the case is indictable, the maximum sentence for sexual assault is ten years. Where it is a summary conviction, it may result in a maximum of 18 months in jail.
A person may however be found guilty of an offence but discharged or acquitted.
The Nature of Discharges
A discharge may be conditional or absolute.
- Conditional discharge in a sexual assault charge in Canada: A conditional discharge operates as a partial sentence. In this case, the convicted person will go through a probationary period and also have a criminal record. The judge may for example, order the accused person not to go close to the victim or contact them. After serving the probationary period, the accused person will then be completely free. An absolute discharge does not work that way.
- Absolute Discharge in a sexual assault case in Canada: An absolute discharge leaves the accused person with a clean record. No criminal record, no probationary period. The person will be free to go once it is pronounced.
Dealing with severe sentencing for sexual assault in Canada
As stated earlier, sentencing for sexual assault differ and may depend on a lot of factors. All those we spoke of above are basically simple cases involving adult individuals and no bodily harm. In more severe cases, you may have to deal with a lot a person may be sentenced for up to 14 years imprisonment especially where firearms are involved, or where bodily harm is inflicted or where force was used. Where the offender uses a restricted or prohibited gun to instil fear while or during the assault, the minimum sentence possible is five years jail term. If any firearm is used, you can get from four years to 14 years (that is four years minimum) if victim is 16 years below, its five years.
Lastly, were injuries or body harm involved? If yes, the sentence may be affected by the severity of the injury. Where the injuries are severe, you may be charged for aggravated sexual assault instead and that carries more stringent sentencing of up to life imprisonment.
So, do you now understand the odds?
If you or a loved one has been caught up in the web of sexual assault, do not panic. Know this; what determines the sentence is what the complainant was able to prove in the court room. If you obtain good legal representation, you will be able to navigate the facts detrimental to your case, and in a worse case scenario, your lawyer will know the best route out.
Get Sound Legal Advice from MassTsang!
With all said and done, it is obvious that if care is not taken, you can face severe punishments/ sentencing for sexual assault in Canada. The convicted person may spend many years in jail, lose valuable and otherwise creative time and even lose reputation in the process. One thing is sure, a sexual assault charge is not to be taken for granted. You need solid legal representation from the very beginning. Also, if you want to get the least sentence possible, you should get competent representation. An experienced lawyer will see you through the whole process and help save valuable time and obtain best court results. You can contact sexual assault lawyers at MassTsang today. We have helped many clients through sexual assaults cases and similar matters. Additionally, your first consultation is free of charge, and you have nothing to lose.