Sexual Assault
Sexual assault is the criminal offence, under section 271 of the Criminal Code, of committing an assault of a sexual nature. The offence is hybrid — Crown can elect summarily (maximum 18 months) or by indictment (maximum 10 years; 14 years where the complainant is under 16). The threshold for what makes an assault "sexual" is functional, not technical: assault that, viewed in the totality of the circumstances, is committed in a context that sexually violates the complainant's integrity.
Mass Tsang's sexual assault lawyers handle these files across the GTA with the gravity they require. For more, see our blog posts on the three primary defences in sexual assault cases and key issues for those accused of sexual assault in Toronto.
Three-tiered structure
Sexual offences are structured in three tiers: section 271 (sexual assault — the base offence); section 272 (sexual assault with a weapon, threats to a third party, or causing bodily harm — maximum 14 years on indictment); section 273 (aggravated sexual assault — wounding, maiming, disfiguring, or endangering life — maximum life). Each tier requires the elements of sexual assault plus the additional aggravating element.
What makes assault "sexual"
The Supreme Court in R v Chase, 1987 set out the test: viewed objectively, would a reasonable observer perceive the sexual or carnal context of the assault? Factors include: the body part touched, the nature of the touching, the situation in which the touching occurred, the words and gestures accompanying the act, the motive (sexual gratification, where evident), and the relationship between the parties. The threshold is contextual, not anatomical — non-genital touching can be sexual assault depending on the context.
Consent
Most contested sexual assault cases turn on consent. Section 273.1 defines consent as voluntary agreement to the specific sexual activity at issue, and section 273.1(2) lists circumstances in which consent is legally invalid — including incapacity, abuse of position of trust, expression of lack of agreement by words or conduct, and withdrawal of previously-given consent. See our glossary entry on Consent (Sexual) for the full framework.
Mistaken belief in consent
Where the accused honestly believed in consent but in fact did not have it, section 273.2 sharply limits the mistaken-belief defence. The defence is unavailable where: belief arose from self-induced intoxication, recklessness, or wilful blindness; the accused did not take reasonable steps to ascertain consent; the complainant was incapable or expressed lack of consent. R v Barton, 2019 confirmed the reasonable-steps requirement.
Penalties and collateral consequences
Beyond the criminal sentence, sexual assault convictions trigger: SOIRA registration; possible section 161 prohibition orders (for offences against children); mandatory weapons prohibitions; DNA orders; immigration consequences; and lifelong reputational and employment consequences. Strategic defence in sexual assault cases must consider these collateral consequences from the outset.
Related glossary terms
