Frequently Asked Questions & Answers about Sexual Assault Sentencing

It is common knowledge crimes of a sexual nature have been historically underreported and that convictions can be difficult to secure.

In part, this is due to the stigma associated with sexual assault. Oftentimes, survivors may worry that they will not be believed, or worse, vilified for reporting it. Recent social movements, like #MeToo, have empowered many to report allegations of sexually based offences at an increasing rate.

Like all laws, the law around sexual assault has evolved with our changing society. While many would argue there is much more work to do, it is clear that that our lawmakers, police officers, prosecutors and judges are taking these types of offences far more seriously.

But what about people who are charged with sexual assault? What can a conviction mean and what are the possible legal consequences?

This blog post will try to answer these questions and explore the law around sexual assault in this country.

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So, what is sexual assault exactly?

Sexual assault can vary widely. It has been described by courts across the country as a wide-ranging offence that has many forms. The actus reus of the offence exists on a spectrum, from less serious acts to the most involved and damaging.
Section 265(1) of the Code defines an assault as taking place when, without the consent of another person, a person applies force intentionally to that person, directly or indirectly. The force does not have to come in any particular form – a simple touch can meet this definition.
An assault may become a sexual assault when it was committed in circumstances of a sexual nature. For example, if the sexual integrity of the victim is violated in the course of the assault. Again, this is a wide definition. Any unwanted application of force – from a touch, brush, or even a pinch – could be considered sexual assault.

If I’m charged with sexual assault, what should I do?

Sexual assault is a very serious allegation that can have very serious consequences. You should not navigate it alone. The best thing that you can do is contact an experienced criminal lawyer right away. They will be able to help you through the process.
Remember that if you are charged with sexual assault, you are entitled to the presumption of innocence. You can elect to proceed to trial and test the case against you or you could opt to plead guilty prior to trial.
You should not make this decision lightly. You should speak to a lawyer to make sure that you know the full case against you, the legal options available to you and what your best course of action is.

How are sexual offenders sentenced?

If a person is convicted of sexual assault, they will be sentenced by a court of law.
A number of factors, including the nature of the crime, will be considered by the court in determining the appropriate penalty.
In R. v. B.S.B. (2008 BCSC 1526), the British Columbia Supreme Court outlined these considerations as:
(a)      the vulnerability of the victim;
(b)      the insidious nature of the offence;
(c)      the accused’s high degree of moral responsibility for the offence;
(d)      the requirement for the sentencing principles of deterrence and denunciation to be stressed.
The first and second considerations are key. If an accused is found to have sexually assaulted an individual in a vulnerable position, where – for instance – a power dynamic weighs in their favour, they are more likely to impose a more rigorous sentence.
The BC Provincial Court decision in R v Tyers, 2014 BCPC 140 provides an example of this. In this case the offender was a chiropractor who touched the breasts and intimate area of a patient. He was given a sentence of twelve months’ imprisonment as a result of this act. The vulnerability of the patient – and the fact that he was in a trusted position as her chiropractor – was factored into the sentencing decision.
Another example is found in R v Rusk (2007 ABCA 189). In this case, the accused was found guilty of fondling and attempted sexual assault of a quadriplegic person. The sentence imposed was four years’ imprisonment.
The nature of the offence points to the type of sexual assault – the actual act committed.
Acts that interfere with the victim in a more involved way – like penetration – are likely to attract more lengthy sentences. While less involved acts – like brushing up against a person or pinching their rear – can still lead to a conviction for sexual assault, the sentence may be less significant.
In some cases, it is possible for an offender to be granted a conditional or absolute discharge. This means that the accused will not carry a “conviction” for the offence. This also means that the accused will not need to register on the Canadian Sexual Offender Registry. This was confirmed in a case from the BC Provincial Court, R. v. Bansil 2020 BCPC 34.

When is a discharge available?

One example of a discharge being granted in a case of sexual assault occurred in R. v. T.J.H. (2012 BCPC 0115). In this case, the accused touched his friend’s fiancee in a sexual way outside the clothing on her genitals over her clothes.
In delivering sentence, the Judge considered the betrayal on the accused’s part, as this was his friend’s fiancee. The Judge also considered that the victim said “no” many times and the accused persisted.
Still, there were factors weighing in the accused’s favour. These included that he had acknowledged and agreed that he had done something he ought not to have done, that he did not go out looking for a victim but took advantage of the situation he was in, and that he generally contributed well to society.
Ultimately, he was granted a conditional discharge. Over the following 18-month period, he was bound to conditions that included a written apology and counselling sessions, among other things. The accused did not have to register with the Canadian Sex Offender Registry as a result of the discharge.
Another interesting decision came out of the Ontario Supreme Court in R v. Burton (2012 ONSC 5920). In that case, the accused was a stranger to the victim. He sat next to her on a public bus and briefly put his hand under her skirt.
This was an appeal of a decision from a lower court, and as a result of the appeal the Supreme Court upheld an absolute discharge for the accused. The Court confirmed that there is no mandatory minimum sentence for sexual assault where the victim is an adult and no weapon was used. The Court determined:
“The crime of a sexual assault has a very wide range of sentencing options, the penalty imposed should be proportionate to the gravity of the assault.”

Okay, so if a person is convicted of a “low-level” sexual assault, will they end up with a discharge?

There is no “one size fits all” when it comes to sentencing. Every case is considered on its facts, which include considering the circumstances of the convicted person themselves.
This test to determine if a discharge is available is as follows:
1)    The Court must determine that the granting of a discharge is in the best interests of the accused.
Considerations include:
–       The accused is a person of good character;
–       The accused has no past convictions;
–       It would not be necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him; and
–       The entry of a conviction against him would have significant adverse repercussions.
If these are satisfied, the Court will move on to part 2.
2)    The Court must determine that the granting of a discharge is not contrary to the public interest.
Considerations include:
–       The public interest in the denunciation and deterrence of others; and
–       The principle of proportionality
Ultimately, it is within the discretion of the court to determine whether it makes sense to grant a discharge, but an experienced lawyer can help.

If you have been charged with sexual assault, it is likely in your interest to hire a lawyer to defend your rights and interests. The lawyers at Sarah Leamon Law Group are experienced with these types of charges and have the expertise needed to secure your best legal outcome.

Give us a call the lawyers at Sarah Leamon Law Group to learn how they can help.

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