Sexual assault is a criminal offence — unwanted sexual touching or force under the Criminal Code, prosecuted by the Crown. Sexual harassment is unwelcome sexual comment or conduct, dealt with mainly through human rights and workplace law. Harassment becomes criminal only when the conduct meets a Criminal Code offence.
The two terms describe different legal systems, not two degrees of the same thing. One ends in a criminal charge and a courtroom. The other usually starts with an employer’s investigation or a human rights application. The confusion is understandable, because a single incident can set both in motion, and because the words get used interchangeably in news coverage and workplace policies.
With extensive criminal defence experience with sexual assault in the Greater Toronto Area, the lawyers of Mass Tsang are going to try to clear up any confusion about the difference between sexual assault and sexual harassment in Canada.
With extensive criminal defence experience with sexual assault in the Greater Toronto Area, the lawyers of Mass Tsang set out below where the legal line sits, what each side of it involves, and when unwanted sexual conduct crosses over.
Canada’s Criminal Code has no separate definition of “sexual assault.” It builds the offence on the general definition of assault in Section 265 (1)’s definition , then states in section 265(2) that the section applies to all forms of assault, including sexual assault. Under that definition, a person commits an assault when they:
What the Code does not do is define what makes an assault “sexual.” That question is left to the courts and is decided on the circumstances of each case, which is one reason these files are fought so hard at trial.
The Code then sets three levels:
Exposure rises sharply across those three, and a conviction can also lead to inclusion on the national sex offender registry .
Section 265(3) narrows what counts as consent: there is no consent where the complainant submits or does not resist because of force, threats or fear of force, fraud, or the exercise of authority. Consent is usually the live issue in these cases, and the law on it goes well beyond that one subsection.
One point of vocabulary. The current Code does not use the word “rape” at all. What people still call rape is charged under the same three sections above, alongside conduct most people would describe as unwanted touching.
Sexual harassment sits outside the Criminal Code. There is no offence called sexual harassment. It is treated as a form of sex discrimination and handled through human rights legislation, occupational health and safety rules, and civil claims.
The scale is not small. Statistics Canada’s 2020 Survey on Sexual Misconduct at Work, released in 2024 , found that 44% of women and 29% of men reported ever experiencing inappropriate sexualized behaviours in a workplace setting.
Federally, section 14 of the Canadian Human Rights Act makes it a discriminatory practice to harass someone on a prohibited ground in employment, in the provision of goods and services, and in commercial or residential accommodation. Subsection 14(2) deems sexual harassment to be harassment on a prohibited ground. The Canada Labour Code went a different way. Since the 2018 amendments to Part II, it regulates “ harassment and violence ” as one concept, defined to include any action, conduct or comment, “including of a sexual nature,” that can reasonably be expected to cause offence, humiliation, or other physical or psychological injury or illness to an employee. Sexual harassment now sits inside that general category rather than beside it.
Those provisions set out the prohibition. The working definition came from the Supreme Court of Canada in Janzen v. Platy Enterprises Ltd. [1989] 1 SCR 1252 , where the Court described sexual harassment in the workplace as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment,” and held that sexual harassment is a form of sex discrimination.
In practice, the conduct people complain about includes:
In Ontario, two statutes do most of the work. The Ontario Human Rights Code gives every employee a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression (section 7(2)), and a right to be free from a sexual solicitation or advance by someone in a position to confer, grant, or deny a benefit, and from reprisal for refusing one (section 7(3)). Section 10(1) defines harassment as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”
The Ontario Code is not only an employment statute. Section 7(1) gives every person who occupies accommodation the same freedom from harassment because of sex, sexual orientation, gender identity or gender expression, whether the harasser is the landlord, the landlord’s agent, or another occupant of the same building. The workplace provisions attract most of the attention, but the Code’s reach is wider than the office.
The Occupational Health and Safety Act treats the same conduct as a safety problem. It defines workplace sexual harassment in comparable terms, including conduct carried out virtually through information and communications technology, and it puts duties on the employer: a written harassment policy, a program to implement it, and an investigation into incidents and complaints “that is appropriate in the circumstances.”
Where a complaint goes matters as much as what it alleges. Harassment files are usually handled by the employer, a human rights tribunal, a Ministry of Labour inspector, or a civil court, not by police and the Crown. The remedies match the forum: damages, reinstatement, orders to change a policy or train staff, and penalties against an organization that failed to respond to a complaint. Nobody goes to jail for sexual harassment as such.
| Sexual assault | Sexual harassment | |
| Source of law | Criminal Code, ss. 265, 271–273 | Canadian Human Rights Act s. 14; Ontario Human Rights Code ss. 7, 10; Occupational Health and Safety Act |
| Conduct covered | Non-consensual force or touching in sexual circumstances, plus threats and gestures under s. 265(1) | Unwelcome sexual comment, conduct, solicitations, and advances. Touching is not required |
| Who investigates | Police | Employer, human rights commission or tribunal, Ministry of Labour inspector |
| Where it is decided | Criminal court, prosecuted by the Crown | Human rights tribunal, occupational health and safety process, or civil court |
| Standard of proof | Beyond a reasonable doubt | Balance of probabilities |
| Possible outcomes | Jail, probation, ancillary orders, registry inclusion in some cases | Damages, reinstatement, policy and training orders, penalties against an employer |
| Criminal record | Yes, on conviction | No |
The overlap sits in the first two rows. Conduct that begins as a harassment complaint can end up in criminal court if it meets a Code offence.
The standard of proof row explains an outcome people find hard to accept. A tribunal can find on the balance of probabilities that harassment occurred and order damages, while a criminal court hearing the same allegation acquits because the Crown could not prove the offence beyond a reasonable doubt. The two results are not in conflict. They answer different questions, on different evidence, under different rules.
Touching is the usual trigger. Once unwanted physical contact of a sexual nature enters the picture — a grab, a kiss, a hand where it was not invited — the conduct fits section 265(1), and the complainant can go to police instead of, or in addition to, an HR process.
Harassment that never involves contact can still draw a charge. A sustained pattern of unwanted attention that makes someone reasonably fear for their safety may be charged as criminal harassment under stalking provisions, and the fear element that drives those cases is explained in our note on criminal harassment in Canadian law . Depending on the facts, conduct framed as harassment may also fit voyeurism , indecent exposure , or uttering threats.
The practical consequence is a change of venue and stakes. Once police lay a charge, the workplace investigation is no longer the main problem: defending a sexual assault charge involves bail conditions, disclosure, and a criminal record on conviction, and it runs on rules that have nothing to do with an employer’s policy.
The two tracks can also run at the same time. An employer’s duty to investigate a workplace harassment complaint does not pause because police have opened a file, so someone can be answering an internal investigator and a detective in the same week. What is said in one process does not necessarily stay in that process, and statements given to an employer can end up in police hands.
For the person on the receiving end, the label decides what happens first. A harassment complaint is routed through a policy and an investigator. A sexual assault allegation is routed through police, and the early decisions come fast: whether to give a statement, whether to reply to the complainant, what to do with messages. They are made long before anyone has seen the full evidence.
Apparent sexual dynamics between people who are not in a relationship can be fraught with uncertainty, confused motivations, and mistaken perceptions. One-sided romantic or sexual attraction can prove legally dangerous because the other side has no interest. This can give rise to unintentional actions and reactions through the course of personal interactions that sometimes lead to accusations of sexual harassment or — worse — sexual assault.
The sexual assault defence lawyers at Mass Tsang have successfully defended 100s of clients from sexual assault charges. To optimize your criminal sexual assault defence, contact the highly experienced lawyers at Mass Tsang .
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Legally Reviewed by
Jeff Mass
| Updated: September 30, 2026
