The mandatory minimum sentence for sexual assault charges in Canada will range from no jail time to seven years depending on the type of sexual assault you are charged with. Under the Criminal Code (the Code), there are several different types of sexual assault offences. The type of sexual assault you will be charged with depends on the circumstances of the offence.
Minimum sentences for each of these offences are set out by the Code, and a judge cannot sentence an offender to less time than what the section mandates. Minimum sentences depend on the following factors:
Amount of harm inflicted on the complainant
The age of the complainant
Whether a firearm was used
If it is a subsequent offence
Whether the Crown prosecutes by way of indictment or summary offence
Not all sexual assault offences have a mandatory minimum sentence, in which case the judge can use discretion to grant the accused a discharge. This article provides an interactive table where the mandatory minimum sentences for each sexual assault offence are listed.
What is a Mandatory Minimum Sentence?
For specific criminal offences, including the types of sexual assault offences listed above, the Code mandates a minimum jail sentence an offender must serve if they plead guilty or are found guilty at trial. Judges have discretion when sentencing an accused, but that discretion must be used within the limits set in the Code. A judge cannot sentence an offender to spend less time in jail than the mandatory minimum sentence. For example, if the Code states a mandatory minimum sentence of five years in prison, the judge is not allowed to sentence the offender to two years. A judge is, however, allowed to sentence an offender to more prison time than the mandatory minimum sentence. Whether a judge imposes the mandatory minimum sentence or a longer sentence depends on aggravating and mitigating factors surrounding the offence.
Factors that Affect the Severity of the Sentence
If an accused pleads guilty or is found guilty of a criminal charge, a sentencing hearing is held. The sentencing judge will consider the evidence and the law, and hear from the Crown and defence of any factors to determine an appropriate sentence. An appropriate sentence reflects the seriousness of the offence and the individual circumstances of the accused. The judge will consider both aggravating and mitigating factors when sentencing a defendant found guilty of sexual assault. Aggravating factors are circumstances that work against the accused and can lead to a judge sentencing an offender to a longer prison sentence than the mandatory minimum. Mitigating factors are the opposite of aggravating factors. They are also extenuating circumstances of the offence that are considered by the judge, but they can lead to a less severe penalty such as a shorter prison sentence or reduced charges. After considering all aggravating and mitigating factors, the sentencing judge will arrive at what they consider an appropriate sentence.
To obtain a harsher sentence, the Crown must establish aggravating factors. The following is a non-exhaustive list of aggravating factors that will be taken into consideration by the sentencing judge:
Whether the defendant has a previous history of sexual assault;
Predatory sexual behaviour;
Strength of violence or force inflicted on the complainant;
The sentencing judge will take the following non-exhaustive list of mitigating factors into consideration when determining the offender’s punishment:
The accused’s knowledge of the complainant’s age;
The accused’s age and mental state;
Whether the accused has a substance abuse problem;
Whether it is a first time sexual assault sentence against the accused;
Whether the accused entered a guilty plea, and if so, when they entered it; and
A lack of criminal history.
If the accused is facing a first time sexual assault sentence, the mandatory minimum sentence will be different than if the accused was previously convicted of an offence(s) listed in section 272(3) of the Code. Click here to see what the Code considers a previous offence.
Mandatory Minimum Sentences for Assault Cases in Canada
The minimum sentence for sexual assault offences depends on the circumstances and how the Crown proceeds to prosecute the case. The Crown can proceed by indictment or by summary conviction. The Crown proceeds by indictment when the offence is more serious. In contrast, summary conviction is considered when the situation is less serious and if a quicker judicial procedure is appropriate. Click on the offences in the table to learn more.
Minimum Sentences for Sexual Assault Convictions in Canada
Sexual Assault: Section 271 of the Criminal Code
Complainant Younger than 16 Years Old
When the complainant is younger than 16 years old, the Criminal Code imposes mandatory minimum sentences for all sexual assault offences.
Sexual Assault by Indictment
If the complainant is under 16 years old and the Crown proceeds by indictment, the mandatory minimum sentence is one year in jail. The maximum sentence is 14 years in jail.
Sexual Assault by Summary Conviction
If the complainant is under 16 years old and the Crown proceeds by summary conviction, the mandatory minimum sentence is six months in jail. The maximum is two years less a day.
Complainant Older than 16 Years Old
If the complainant is older than 16 years old there is no mandatory minimum sentence for the specific offence of sexual assault.
If the Crown proceeds to prosecute sexual assault by indictment, the maximum sentence is 10 years.
If the Crown proceeds by summary conviction, the maximum sentence is 18 months.
Sexual Assault Causing Bodily Harm: Section 272(1) of the Criminal Code
Causing bodily harm or using a weapon in the commission of a sexual assault is much more serious. The length of the minimum sentence varies depending on the circumstances of the offence. If the offender does not use a weapon and the complainant is over 16 years old, there is no mandatory minimum sentence. Every other offence under the following section has a mandatory minimum sentence.
Section 272(1) lists that every person commits an offence who, in committing a sexual assault:
(a) carries, uses or threatens to use a weapon or an imitation of a weapon; (b) threatens to cause bodily harm to a person other than the complainant; (c) causes bodily harm to the complainant; (c.1) chokes, suffocates or strangles the complainant; or (d) is a party to the offence with any other person.
Sexual Assault Causing Bodily Harm With a Restricted or Prohibited Firearm
An offence committed under section 272(1) is an indictable offence. If a restricted or prohibited firearm is used in the commission of the sexual assault, or if any firearm is used in the commission of the offence and the offence is committed in association with a criminal organization, the maximum punishment is 14 years. An offender’s first offence is a mandatory minimum sentence of five years.
Sexual Assault Causing Bodily Harm With a Restricted or Prohibited Firearm (Repeat Offence)
When the sexual assault is a second or subsequent offence, the mandatory minimum sentence is seven years. Section 272(3) lists what constitute an earlier offence:
An offence listed under s. 272(1);
Section 85(1): using a firearm in the commission of an offence;
Section 85(2): using an imitation firearm in the commission of an offence;
Section 244: discharging a firearm with intent;
Section 244.2: reckless discharge of a firearm;
Section 220: causing death by criminal negligence;
Section 236: manslaughter;
Section 239: attempted murder;
Section 273: aggravated sexual assault;
Section 279(1): kidnapping;
Section 279.1: hostage taking;
Section 344: robbery; and
Section 346: extortion if a firearm was used in the commission of the offence.
However, if the earlier offence occurred more than 10 years prior to the subsequent offence, the earlier offence shall not be considered.
Sexual Assault Causing Bodily Harm with Possession of Other Firearm
In any other case where a firearm is used in the commission of the offence, the mandatory minimum sentence is four years and the maximum sentence is 14 years.
Complainant Younger than 16 Years Old
In any other case where a firearm is used in the commission of the offence and the complainant is younger than 16 years old, the maximum sentence is life in prison and the mandatory minimum sentence is five years.
Aggravated Sexual Assault: Section 273(1) of the Criminal Code
Aggravated sexual assault occurs when the accused wounds, maims, disfigures or endangers the life of the complainant when committing a sexual assault. If the complainant sustains an injury in the commission of the offence, the accused will typically be charged with aggravated sexual assault. Every person who commits an aggravated sexual assault is guilty of an indictable offence and faces a maximum sentence of life in prison. The mandatory minimum sentences will depend on the age of the complainant and whether a firearm was used in the commission of the offence.
Aggravated Sexual Assault With Restricted or Prohibited Firearm
If a restricted or prohibited firearm is used in the commission of an aggravated sexual assault, or if the offence is associated with a criminal organization the maximum sentence is imprisonment for life. If it is the accused’s first offence, the mandatory minimum sentence is five years, and if it is a second or subsequent offence the mandatory minimum is seven years.
Aggravated Sexual Assault With Possession of Other Firearm
The mandatory minimum in any other case where a firearm is used during the offence is four years, and the maximum sentence is life in prison.
Complainant Younger than 16 Years Old
If the complainant of aggravated assault is younger than 16 years old, the mandatory minimum sentence is five years.
Additional Court Orders
Not Being Allowed to Be Near Children
If a person is convicted of sexual assault against a complainant younger than 16 years old, the judge may order that individual stay away from children. For instance, defendants might be prohibited from going to public parks or playgrounds, schools, daycare, or community centres. Further, the court may impose conditions that the person not be employed or volunteer in any capacity that involves a position of trust over a person younger than 16 years old. This includes teaching jobs and coaching sports teams, even if the offender was employed in that area before being convicted.
No Internet Access
The court can also order the offender to have restricted access to the internet. Under certain conditions, however, such as looking for a job or rehabilitation centres, the court will allow internet access for that specific purpose.
The court may also order the offender not to possess any weapons. The term “weapon” is defined in the Code meaning anything used, designed to be used or intended for use in causing death or injury, or for the purposes of threatening or intimidating any person. This also includes cross-bows and anything used, designed to be used or intended for use in binding up a person against their will. If the complainant of the sexual assault is the offender’s partner, or if they are related to the offender, the court will impose a no weapons order.
Crossing the US Border
Individuals convicted of sexual assault are unlikely to be permitted to cross the border. Border guards have a lot of discretion over who they allow into the United States. People who receive a discharge for a sexual assault offence may still be turned away.
A Discharge (Sentence)
Judges can use their discretionary powers and grant an accused a discharge. Once the person pleads guilty or is found guilty by a court, the judge can order an absolute or a conditional discharge. Therefore, although a discharge is considered a finding of guilt, the person will not be convicted nor have a criminal record as a result of the incident. The judge will consider the seriousness of the offence and whether a discharge will be in the best interest of society and the offender.
However, a discharge cannot be granted for an offence that contains a mandatory minimum sentence.
When individuals have been granted an absolute discharge, they are free to go and do not have to abide by additional probation requirements. A judge will grant an absolute discharge when the offence is less serious or under exceptional personal circumstances.
When an accused is granted a conditional discharge, they are issued a probation order. They have to abide by specific conditions the court sets out for a maximum period of three years. For example, a court may order an accused to:
Attend counseling or rehabilitation
Complete a certain number of hours of community service
Not communicate directly or indirectly with the complainant
When the probation period is completed, the conditional discharge becomes an absolute discharge.
National Sex Offender Registry
What is the National Sex Offender Registry?
A person will be put on the National Sex Offender Registry if they are convicted of a sexual assault offence. It is a national registration system that requires individuals to submit the following to law enforcement:
Legal name and any alias;
Date of birth and physical description including height, weight, and identifying marks such as scars or tattoos;
Address of primary and secondary residences;
Address of educational institution;
Name and address of volunteer organizations;
Information related to the sexual assault offence;
A current photograph of their face and any distinguishing marks or tattoos;
Employment and address of employment;
Provincial driver’s license; and
Those placed on the National Sex Offender Registry must report annually to a registration centre to update their personal information. Individuals must also notify law enforcement if they intend to travel, and inform law enforcement the details of their travel plans. The amount of time the person remains on the Registry varies case by case. If the Crown proceeded to prosecute the accused by way of indictment, the person will be on the Registry for 20 years. If the Crown prosecuted by way of summary conviction, the person will remain on the Registry for 10 years.
Getting Taken Off the Registry
There is a process to be removed early from the National Sex Offender Registry. It is a tedious and complicated process, and it is highly recommended people retain an experienced criminal defence lawyer for assistance.
Individuals who are on the National Sex Offender Registry may apply to the courts to be removed early from the Registry:
5 years after a 10-year order was issued
10 years after a 20-year order was issued
20 years after a lifetime order was issued
When people apply to be removed from the Registry, early removal is not guaranteed. The court may deny their application, and they will stay on the Registry for the remainder of their order.
Recent Case on Mandatory Minimum Sentencing in Canadian Law
In 2018, the Ontario Superior Court of Justice struck down the mandatory minimum in a narcotics case in R v Sharma. The court found the mandatory minimum sentence of two years required by section 6(3)(a.1) of the Controlled Drugs and Substance Act was cruel and unusual punishment, and was contrary to section 12 of the Charter. The Crown appealed the case in 2020, but not on the court’s ruling of mandatory minimum sentences. This means that other defendants may argue the mandatory minimum sentence is unconstitutional in their particular case. There is no guarantee of this outcome, but Pyzer Criminal Lawyers have the experience and tenacity to get you the best outcome possible if you are facing sexual assault charges.
Frequently Asked Questions
Can a Judge Waive a Mandatory Sentence?
Mandatory minimum sentences are predetermined by law and do not allow for judges to give a lesser sentence. However, judges do have the discretion to strike the minimum sentence down if they find it violates the offender’s Charter rights.
The difference between assault and sexual assault is whether the sexual integrity of the complainant was violated. The courts will consider many factors when determining whether an accused is guilty of sexual assault, including the part of the body, the situation and context in which the contact occurred, any words or gestures made during the contact, and the state of the accused and complainant such as intoxication or mental state.
How do You Beat a Sexual Assault Charge?
Sexual assault is a serious offence and it is imperative for individuals to hire an experienced criminal defence lawyer to challenge the allegations. Defences will vary depending on the circumstances of your accusations. Possible defences include consent, innocence, or the presence of a mental condition during the commission of the offence.
An honest but mistaken belief in consent is when the defendant can demonstrate they took reasonable steps to establish that consent was given. There has to be evidence such as physical actions or verbal communication to indicate whether consent was given.
A defence of innocence is when individuals may argue they did not commit the offence. In order to mount an effective defence based on innocence, an alibi will greatly support the defendant’s claim.
A defence to all criminal offences is that the individual was suffering from a mental disorder at the time of the offence. If successfully argued, defendants will be found not guilty but not considered innocent either. The result is that individuals are “not criminally responsible by reason of mental disorder,” referred to as NCRMD. This is a difficult defence to prove as it requires expert evidence. During the commission of the offence, it must be shown that defendants were inflicted by a mental disorder and therefore were incapable of appreciating the nature and quality of the act or omission, or of knowing that it was wrong. Either the Crown or defence can raise the defence of NCRMD. If people are found to be NCRMD, they are placed in the hands of a provincial Review Board that holds a hearing regarding the disposition. The outcome of that hearing will either be an absolute discharge, a discharge subject to conditions, or detainment in a psychiatric hospital subject to conditions the Review Board considers appropriate.
What is the Difference Between Sexual Assault and Rape?
The wording of the Code has changed over the years. The term “rape” is no longer used. Now, the Code uses the term sexual assault. Rape is considered an example of sexual assault against a person.
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Jenessa is completing her Juris Doctor degree at the University of Ottawa where she will graduate in 2022. Originally from Kelowna, she completed her undergraduate degree at the University of British Columbia Okanagan with a major in psychology and a minor in sociology.
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