Section 265 of the Criminal Code of Canada defines assault as follows:
- (1) A person commits an assault when
- (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
- (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
- (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
Section 265 applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
If the case is one of domestic violence, also know as spousal assault, generally you will not be released until you agree to not attend the residence where your spouse lives (except on one occasion in the company of a police officer to retrieve your personal possessions), agree to have no contact with your spouse, directly or indirectly, and not attend any place of employment, school, or place of worship of your spouse. This can create great difficulties in the matrimonial setting and even though the spouse may not want these conditions to remain in place, the spouse simply cannot request that the conditions be removed or the charges dropped. That is up to the Crown, not the complainant.
Charges of sexual assault are a specific type of assault under the Criminal Code. Related charges are Sexual Interference, Invitation to Sexual Touching, and Sexual Exploitation. Sexual assault is any sexual contact that happens without consent. It can range from unwanted sexual touching to forced sexual intercourse. A sexual context is deemed to exist if the sexual integrity of the victim has been compromised. The sexual nature of an assault is determined on the basis of all the circumstances surrounding the assault, the part(s) of the body that are touched, the words that are said, the acts that are committed and the intention of the perpetrator. However, the latter’s intention is not always a good indicator of the presence of a sexual context, particularly because touching sexual parts of a person’s body is by its very nature a sexual act, regardless of the intention of the person who commits the act.
Section 271 of the Criminal Code states that everyone who commits a sexual assault is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
The defence of a sexual assault charge is a very complicated process due to changes to the Criminal Code as to what evidence is admissible and whether certain evidence in respect to the complainant has to be disclosed to the defence. Because there are a number of restrictions on the type of evidence that can be brought forward by the defence a number of pre-trial applications must be brought to determine whether such evidence may be disclosed to an accused and to determine its relevance. It is crucially important to retain defence counsel knowledgeable and experienced in this area of the law.
If you are dealing with assault allegations, or you have been charged with assault, please contact PG Kent for assistance.
Criminal Defence Lawyer
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