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What’s the Difference Between Sexual Assault and Sexual Harassment in Canada

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According to the latest data from Statistics Canada, Ontario police investigated more than 12,000 reports of sexual assault in 2022. These investigations led police to arrest almost 3,500 alleged offenders on criminal sexual assault charges. Police cleared nearly 2,000 of the cases without laying charges, while the remainder are apparently still under investigation.

Meanwhile, Stats Can recently reported that 44% of women and 29% of men said they had ever experienced “inappropriate sexualized behaviours” — formerly referred to as “sexual harassment” — in the workplace. Note that this does not include reported sexual harassment incidents that may have occurred in schools, religious institutions, the home, or any number of other social settings. Adding this to the mix would undoubtedly expand the numbers supporting the Stats Can’s statistics.

Distinct from criminal sexual assault, sexual harassment is also illegal under the auspices of the Canadian Human Rights Act and Canada Labour Code. However, both recently melded the offence with the more general classification of “harassment.” The distinction between what constitutes criminal sexual assault versus sexual harassment can sometimes be blurred. Some sexual harassment incidents can cross the Canadian Criminal Code line to be addressed as a criminal sexual assault, while the Human Rights Act, Canada Labour Code, and related provincial laws may address others. Or, as surmised by the numerous governmental and non-governmental organizations that track sexual harassment, remain unreported by the victims or unaddressed by authorities.

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.

Sexual Assault Basics in the Criminal Code

Canada’s Criminal Code essentially defines what’s known interchangeably as “basic,” “simple,” or “level one” sexual assault under Section 265 (1)’s definition of “assault” by noting that it also applies to all forms of sexual assault. Thus, the following forms of assault listed in the definition constitute a “sexual” assault if committed with sexual intent:

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

The two other, more severe levels of sexual assault also rely on the Code’s Section 265 (1) definition of assault by adding these parameters:

  • Sexual assault with a weapon, threats to a third party or causing bodily harm.
  • Aggravated sexual assault.

The first of these is self-evident by adding a weapon(s), threats to others, or causing bodily harm to the mix, while “aggravated” in the second refers to a sexually oriented assault that “wounds, maims, disfigures or endangers the life” of the victim.

The penalties for an indictable level one assault — which you should note covers everything from unwanted sexually oriented touching (including a kiss or casual touch in the wrong place) to rape — range from one to 10 years imprisonment. As a summary conviction offence, the penalties range from six to 18 months in jail. The penalties for the higher-level sexual assaults range from five years to life in prison. Those convicted also face mandatory inclusion on the federal sex offender registry .

Sexual Harassment Under the Human Rights Act and Labour Code

Sexual harassment is a blanket term that covers a wide range of unsolicited and unwanted sexual behaviours, often characterized by the harasser seeking to exert some level of control over their victim. Sexual harassment is one of those “I know it when I see or experience it” terms, but from a legal standpoint, if the sexual behaviours are not solicited or accepted by the one being harassed, it can constitute harassment. Some prime examples of potential sexual harassment include (but are certainly not limited to):

  • Unnecessary physical contact or unwanted touching.
  • Using sex-specific derogatory language and/or commentary.
  • Leering or inappropriate staring.
  • Offering workplace advancement in exchange for sexual favours.
  • Displaying or circulating pornographyor other sexual images in person or online.
  • Expressing or circulating sexual jokes in person or online.
  • Vulgar humour or language related to gender.
  • Sexual or gender-related comments or conduct with the intent to bully.
  • Spreading sexual rumours verbally or online .
  • Unwanted propositions of physical intimacy.
  • Gender-related verbal abuse, threats, or taunting.
  • Bragging about sexual prowess.
  • Demanding dates or sexual contact.
  • Unwanted questions or discussions about sexual activities.

While neither the Human Rights Act nor the Canadian Labor Code define sexual harassment, Canada’s Supreme Court added context to the term in its 1989 Janzen v. Platy Enterprises Ltd. [1989] 1 SCR 1252 ruling. According to the high court, sexual harassment can be characterized as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims.” It also declared that “[s]exual harassment is a form of sex discrimination,” which is how the Human Rights Act treats it.

The federal regulations are undergirded by provincial laws, which in our province are the Ontario Human Rights Code, Occupational Health and Safety Act, and Workplace Safety and Insurance Act. Thus, sexual harassment victims in Ontario tend to primarily seek relief through these laws.

The laws primarily apply to the workplace by encouraging employers to prevent sexual harassment and penalize employees who engage in it. However, discrimination provisions in the Human Rights Code allow victims to pursue action in other venues, such as schools, social organizations, and other entities. When employers or other responsible entities fail to react to a victim’s sexual harassment complaint, these laws allow the government to penalize them. Additionally, the laws enhance a victim’s ability to pursue civil damages against the harasser and any entity that fails to respond to reported harassment.

Some Sexual Harassment Can Be Deemed Criminal

As previously noted, some types of sexual harassment can also be considered sexual assault. If the harassment includes unwanted touching or threats, a victim can lodge a criminal sexual assault complaint. Some forms of sexual harassment can also lead to charges under other sections of the Criminal Code, such as voyeurism , stalking , or indecent exposure .

Consult the GTA Sexual Assault Criminal Defence Lawyers at Mass Tsang

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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