The Law

The survivor of sexual assault is not represented by a lawyer in court. The government has a lawyer who acts on behalf of the province (or people). This lawyer is called the crown attorney, s/he will argue that the wrong committed by the accused amounts to a wrong to the community as a whole (thus making it a criminal and not a “civil“ offence) and thus he should be punished/deterred/rehabilitated/kept from society for society’s protection. The accused will have a lawyer acting in his defence; s/he is called the defence lawyer. Note that it is up to the crown to lay charges, not the survivor of the assault or the police. The crown will make the decision of whether or not to lay charges on the advice of the police.

The criminal code does not include a specific definition of sexual assault; it does however define assault as occurring when someone applies physical force to another person without that person’s consent. Recent cases tell us sexual assault is simply assault committed in circumstances of a sexual nature. It can be any act that is intended to degrade or demean another person. Factors that the court will consider in determining whether an assault was “sexual” include the following:

  • the part of the body touched
  • the circumstances of the situation
  • words and gestures that accompany the act
  • motivation of the assaulter

These factors are supposed to be judged by an objective standard, that is, what a reasonable person would perceive as a sexual assault, which may or may not be what the survivor perceives a as sexual assault.

Level 1 – Simple Sexual Assault

It is a crime if someone forces any form of sexual activity on someone else, (kissing, fondling, touching, sexual intercourse etc.) without that persons consent.

Level 2–Sexual Assault with a Weapon

  • It is a crime if, during a sexual assault someone:
  • uses a weapon or threatens to use a weapon (imitation or real)
  • lf someone threatens to cause bodily harm to a third person( e.g. child, friend or family)
  • Someone causes bodily harm to another person
  • More than one person assaults someone in the same incident

Level 3 – Aggravated Sexual Assault

It is a crime if while someone is being sexually assaulted they are

  • wounded, maimed, disfigured, or brutally beaten
  • If they are in danger of losing their life.

Sexual Interference (children under 14)

It is a crime if someone, for sexual purposes,

  • touches any part of the body of a child

Invitation to Sexual Touching (against children 14 to 17)

It is a crime if someone, for sexual purposes,

  • Encourages a child to touch them with any part of their body or an object.
    or
  • encourages a child to touch his or her own body or the body of someone else

Sexual Exploitation (against children 14 to 17)

It is a crime if someone who is in a position of trust or authority towards a young person, or is a person with whom the young person is in a relationship of dependency, commits the offences of sexual interference or invitation to sexual touching as described above.