Aggravated Sexual Assault

Aggravated sexual assault is considered to be one of the most severe crimes and is set out in s. 273 of the Canadian Criminal Code. It involves a serious sexual assault that results in wounding, maiming, disfiguring or endangering the life of the victim. Even a minor level 1 sexual  assault under s. 271 of the Criminal Code is considered to be a very serious crime in Canada with significant penalties and repercussions. A level 3 aggravated sexual assault is at the other  extreme end of the spectrum and attracts harsher penalties.

Understanding Aggravated Sexual Assault

Elements of the Offence

To be charged with aggravated sexual assault, the following elements must be present:

• Sexual Assault: There must be proof of a sexual act without consent.
• Aggravating Factors: The assault must include additional elements that heighten its severity.

These factors can include committing the sexual assault in a particularly brutal manner with any of the devastating physical consequences described above. The Criminal Code specifies these details clearly to differentiate between levels of sexual assault.

Injuries Resulting from an Assault

Serious injuries play a crucial role in defining aggravated sexual assault. Injuries can include:

• Wounds: for example, where someone is stabbed with a knife
• Maiming: Permanent injury that impairs part of the body.
• Disfigurement: for example, a serious and permanent facial scar. 
• Endangering the life of the complainant: for example, the victim winds up in intensive care. 

The physical and visible impact of these injuries often influences the severity of charges. Medical reports and testimonies can serve as critical evidence. In some cases, the emotional trauma inflicted on the complainant can also be taken into consideration to increase sentencing penalties. 

Sexual Assault Causing Bodily Harm Versus Aggravated Sexual Assault 

Sexual assault causing bodily harm under s. 272 of the Criminal Code is sometimes referred to as a level 2 sexual assault. Section 2 of the Criminal Code defines bodily harm as any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.

An accused will be charged with sexual assault causing bodily harm when the injuries they caused do not rise to the level of an aggravated sexual assault. For example, if an accused breaks a person’s nose during a sexual assault or causes significant and painful bruising, they could  be charged with sexual assault causing bodily harm. However, a broken bone generally does not qualify as an aggravated sexual assault unless it resulted in maiming or perhaps a compound fracture which resulted in a serious wound.   

The Criminal Code considers both immediate and long-term effects. An aggravated sexual assault occurs when the assault includes actions that significantly worsen the complainant’s physical condition. Another example of an additional aggravating factor is where a firearm is used during the commission of an aggravated sexual assault. In this circumstance a conviction will result in at least a lengthy mandatory minimum jail term and possibly up to lifetime imprisonment.  The use of any other type of deadly weapon would also qualify as an aggravating factor leading to a longer jail term due to the severity of the sexual assault.  

 

 

Legal Proceedings and Criminal Code

Legal proceedings related to aggravated sexual assault involve specific court jurisdictions, procedures, and roles. 

Court Jurisdiction and Procedure

Aggravated sexual assault is an indictable offence under the Criminal Code of Canada. The defendant has the right to choose his or her mode of trial. An accused can elect to be tried in the Ontario Court of Justice (i.e., by judge alone), in the Superior Court of Justice by judge alone or by a judge and jury in the Superior Court of Justice.  

If the accused elects to be tried in the Superior Court of Justice,  they can also elect to have a preliminary inquiry (also called a preliminary hearing) in the Ontario Court of Justice. If the accused elects to be tried in the Superior Court of Justice, it is usually strategically advantageous to elect to have a preliminary inquiry. Aggravated sexual assault trials often involve multiple days of pre-trial motions (i.e., factual and legal arguments which take place before a trial) and complex trials which can take 4-8 or more days depending on whether the accused elects to be tried by a judge alone or a judge and jury. 

Role of the Crown and Defence

The Crown (prosecution) and the defence play critical roles. The Crown’s responsibility is to prove beyond a reasonable doubt that the accused committed the offence. The evidence must be clear and convincing.

Defence lawyers aim to challenge the Crown’s evidence and present any exculpatory evidence that supports the accused’s innocence. They may cross-examine witnesses, call defence witnesses to testify and present legal arguments in an attempt to create reasonable doubt.  

Both parties sometimes call  expert witnesses to testify on complex issues. The judge or jury assesses the credibility and reliability of the evidence and delivers a verdict based on the evidence and arguments presented.

The Court  Process

The court process begins with charges being laid under the Criminal Code of Canada. Section 273 of the Criminal Code outlines the legal definition and penalties for aggravated sexual assault. 

An information is the formal charge document that sets out the aggravated sexual assault charge against the accused. The accused’s lawyer will receive a copy of the information, which details the specific allegations. The accused’s lawyer will also receive a complete copy of the police investigation file (i.e.,  referred to as “disclosure”) which is provided to defence counsel by the crown. If the accused elects to be tried in the Superior Court of Justice,  the crown will file a document called an indictment which sets out the charges the accused is facing.

The aggravated sexual assault court process includes an initial appearance, the bail process, multiple court appearances, one or more judicial pre-trials, possibly a preliminary inquiry,   pre-trial motions and finally the trial.  These steps ensure the accused’s rights are protected while the case progresses. 

 

 

Penalties and Sentencing

Penalties for aggravated sexual assault vary greatly depending on the details of the case. Sentences typically range from years in prison, to a maximum life sentence. If a restricted or prohibited firearm is used during the offence, there is a mandatory minimum 5 year jail term. If a legal firearm is used in the commission of the offence the mandatory minimum sentence is 4 years in jail. If  the complainant is under 16 years old, the accused will also face a mandatory minimum 5 year jail term. However, the use of a firearm or where the complainant is under 16 years old, will usually result in longer jail terms than the mandatory minimums.  

Assessing the Severity of the Offence

The court will asses the severity of aggravated sexual assault by examining various factors. They look at the extent of physical harm caused to the complainant. Psychological trauma is another key consideration. The use of weapons or threats of violence makes the offence more severe. Courts also consider the offender’s intent and premeditation.

Sentencing Guidelines and Options

Judges impose fixed prison terms unless the accused is found to be a dangerous offender.  A dangerous offender designation results in an indeterminate sentence of imprisonment with no chance of parole for 7 years. However, the odds of a dangerous offender receiving parole for an aggravated sexual assault after only 7 years are very low. Parole eligibility often depends on the length and nature of the sentence. The severity of harm caused to the complainant can influence the sentence length. Judges follow federal sentencing guidelines to ensure fairness.

Special Considerations

Special considerations in aggravated sexual assault cases often involve sensitive factors such as the age of the complainant, the presence of weapons, and the power dynamics between the perpetrator and the complainant. These factors can impact charges, penalties, and the overall handling of the case.

Offences Involving Minors

Aggravated sexual assault charges involving minors have specific legal approaches and will usually entail additional charges. Additional charges could include sexual interference, invitation to sexual touching, and sexual exploitation. The law focuses on protecting young people from exploitation and harm. The sentencing case law supports very lengthy jail terms where the victim is a minor. 

Sentences are severe due to the vulnerability of minors. In such cases, the Canadian legal system seeks to protect the anonymity of the minor to avoid further trauma. Cases involving incest and kidnapping are treated with utmost seriousness. An accused guardian or someone in a position of authority also adds to the gravity of the offence.

Cases with Weapons or Threats

When weapons or threats are involved, the severity of the offence increases. The use of a firearm or other weapons during the assault leads to harsher penalties. This is because the presence of a weapon can cause significant physical and psychological harm.

Exploitative Relationships and Power Dynamics

Exploitative relationships and power dynamics play a crucial role in these cases. When a perpetrator holds a position of authority over the complainant, such as a teacher, coach, or employer, the offence is considered more severe. This is due to the trust and power imbalance, which can be portrayed in a way where the complainant was trapped.