Like other countries, sexual assault in Canada is a grave crime. The judicial system imposes a strict sexual assault sentence in Canada on offenders. Sentencing for sexual assault varies from case to case, depending on several factors.
The Criminal Code of Canada outlines the penalties for different types of sexual assault. The sentences range from fines to life imprisonment.
This is why it is essential to understand the potential sentences and factors associated with sexual assault. That’s where we can help. This article will help you navigate how Canadian law deals with sexual assault sentences.
How the Sexual Assault Sentence is Determined?
In Canada, the process to determine sexual assault sentences is somewhat complex. It takes into account some factors that can aggravate the sexual assault sentences. However, some factors can also mitigate the sentences, such as the accused’s age, background, etc.
The following are the mitigating and aggravating factors.
Mitigating Factors
Mitigating factors are those that reduce the severity of the penalty. These factors do not excuse the crime but can influence the judge’s decision in sentencing. Also, this may affect the Crown’s decision on whether to proceed.
If mitigating factors are present in a case, the Crown should think twice before sending the accused to a jury trial. The most essential mitigating factors include the following;
First-time offender: An offender with no prior criminal history may be considered less likely to re-offend. So, the accused may possibly get a reduced sentence.
Guilty plea: An early guilty plea may be viewed favourably because it shows an offender’s acceptance of responsibility. It makes the sentencing less severe.
Age and maturity: Younger sexual offenders (minor), particularly those lacking maturity, may receive some compassion. If the court believes that their actions were influenced by youth, the case may take a complete turn.
In addition to these essential mitigating factors, there are some other common factors included in sexual assault cases.
- Demonstrated remorse and willingness to undergo rehabilitation.
- Cooperation with law enforcement.
- Delay between offence and prosecution.
Aggravating Factors
Aggravating factors increase the severity of the offender’s actions, leading to harsher sentences. These factors highlight the seriousness of the offence and the harm caused to the victim.
Here are some common aggravating factors considered in sexual assault cases in Canada:
- Use of Violence or a Weapon: The use of physical violence or a weapon will lead the sexual assault case to harsher sentencing.
- Victim’s age: If the victim is a child or elderly, the accused will get a severe sentence.
- Victim’s vulnerability: If the victim is physically or mentally vulnerable or dependent on the offender, the penalties will be severe. Putting the victim under undue influence is also considered the victim’s vulnerability.
- Accused’s awareness of victim’s age: If the accused is found assaulting a minor, knowing its age, the sentence will be severe.
- Extent of Physical Harm: If significant physical injuries are caused to the victim during the assault, the consequences can be severe. That is, the degree of force also matters.
- Offender’s criminal record: If the offender has a prior record for similar offences, they will likely get severe punishments.
- Position of authority: When the accused abuses a position of authority over the victim, the sentencing will be harsh.
- Premeditation: Punishment will be severe if the accused planned the assault in advance.
What is the Average Sentence for Sexual Assault in Canada?
Judges consider the mitigating and aggravating factors before deciding a sentence for sexual assault. They can impose the least minimum sentence no matter the degree of offence.
The Criminal Code of Canada (Section 271) specifies the average sentence for sexual assault cases.
6 Month or 1 Year of Prison Term
The minimum sentence for sexual assault is 6 months if the victim is under 16 and the case proceeds summarily. The maximum sentence can be 2 years in prison.
If the crown proceeds by indictment and the victim is under 16, the minimum sentence is 1 year. The maximum sentence can be 14 years in prison.
4 or 7 Years of Prison Term
In case of aggravated assault involving the use of a weapon, visible physical injuries, etc., the minimum sentence is 4 years. The maximum sentence can be 7 years when the accused is a repeat offender or a threat to life.
When Do You Get Discharged from a Sexual Assault Sentence?
The accused of sexual assault can be discharged, as per Section 730 of the Criminal Code. The discharge from a sexual assault sentence in Canada can be of two types: Conditional and Absolute.
Conditional Discharge
In some cases, a judge may impose a conditional discharge. The accused will be under probation during conditional discharge. It requires the accused to serve their sentence in the community under strict conditions rather than in prison.
The judge might order the offender to follow certain conditions, including;
- Avoid being close to the victim
- Not owning any weapon
- Reporting to a parole officer
- Not consuming drugs or alcohol
The conditions apply until the probation period expires. After the probation period, the accused will be completely free (with a criminal record).
However, the Royal Canadian Mounted Police (RCMP) database will have conditional discharge information for 3 years.
Absolute Discharge
When the accused gets an absolute discharge, they will be released with no criminal records or any probation period. The criminal record will no longer be available after one year.
The Law of Consent in Sexual Assault in Canada
Any sexual activity is legal in Canada only when both parties consent. Canadian law focuses on what the person was thinking and feeling during the sexual activity.
Under the Criminal Code of Canada (Section 273.1), consent is not obtained in the following circumstances:
- Someone else given the consent instead of the victim
- The consent is given with force or threats
- Consent obtained through deceit or misrepresentation
- The accused abuses a position of power or authority to obtain consent
- The victim is not capable of consenting due to being unconscious, asleep, intoxicated, etc.
Conclusion
Sexual assault charges can be absolutely daunting for both parties. The Criminal Code of Canada specifies various penalties, from fines to life imprisonment. The severity of allegations determines the minimum sentence for sexual assault in Canada.
If you or a loved one is accused of sexual assault, it’s best to get legal help. A lawyer can handle the situation if the allegation is unfair. If you act fast, you can mitigate any aggravating circumstances.