A number of statutes pertaining to criminal, penal, and civil law can apply to cases of sexual assault.
CRIMINAL CODE OF CANADA
Regardless of its nature, a sexual assault is a CRIME that can be reported no matter how much time has passed since the assault.
There is no obligation to file a complaint with police, EXCEPT in the case of a minor.
Any form of sexual assault is legally considered an assault, as defined in Section 265(1) of the Criminal Code.
Three levels of sexual assault have been defined depending on the severity of the offence:
Simple sexual assault (Section 271) : This type of sexual assault causes no bodily harm, or almost none, to the victim.
Sexual assault with a weapon (Section 272): This type of sexual assault involves one or more of the following aggravating factors:
- carrying, using, or threatening to use a weapon (imitation or real);
- threatening to cause bodily harm to a person other than the victim;
- causing bodily harm to the victim; or
- being a party to the offence with any other person.
Aggravated sexual assault (Section 273): This type of sexual assault involves wounding, maiming, disfiguring, or endangering the life of the victim.
As set out in the Criminal Code, R.S.C., 1985, c. C-46.
Source : Information Guide for Sexual Assault Victims, a Montreal working group project on sexual assault, 2007.
YOUTH PROTECTION ACT
This Act contains specific provisions on sexual assault committed against minors.
Requirement to report sexual and physical abuse: Any professional or individual who has reasonable grounds to believe that the safety or development of a child is in danger must bring the situation to the attention of the Director of Youth Protection (DYP).
It is not up to the person who reports a situation to the DYP to decide whether or not it is admissible or true. This responsibility lies with the DYP (Section 39, and subparagraphs d) and e) of Section 38) of the YPA).
YOUTH CRIMINAL JUSTICE ACT (YCJA)
This Act contains specific provisions on sexual assault committed by minors.
“Every person is inviolable and entitled to the integrity of his person. Except in cases provided for by law, no one may interfere with his person without his free and enlightened consent.” (Article 10 of the Civil Code)
Canadian and Québec Charters
The citizens of Canada and Québec have various fundamental civil rights, including the right to life; personal security, inviolability, and freedom; and the protection of children and elderly or disabled persons. These charters also provide for certain legal guarantees and judicial rights.
The courts now recognize that victims of sexual assault are entitled, as part of the judicial process, to personal inviolability, protection of privacy, and equality.
Act respecting assistance for victims of crime and Crime Victims Compensation Act
Both these Acts govern services and compensation for crime victims.
Corrections and Conditional Release Act
This Act applies to people convicted of sexual assault for the duration of their sentence.
Sex Offender Information Registration Act
The National Sex Offender Registry, created under the Sex Offender Information Registration Act, is a national database of all people convicted of sexual offences in Canada.
For more information go to:
The judicial process
No victim will ever be compelled to disclose details to the police against his or her will.
Below is an overview of the steps involved in the judicial process once an assault is reported.
- Filing a complaint with police
- When a victim decides to report an assault (right away or years after it occurred), he or she must file the complaint with the police department in the municipality where the assault took place. The police officer will take a statement detailing as many facts as the victim can remember.
Young children have access to a special procedure to facilitate the process: A child-victim’s testimony is video-recorded during the first interview with police officers. This procedure spares the child from having to repeat his or her story numerous times, for example, to the DYP, the Crown Prosecutor, etc. However, if the case goes to trial, the child will have to testify as to the statements made during the recorded interview. If necessary, the child can testify in a separate room designed specifically for this purpose, which will ensure he or she does not have to see the accused while testifying. The child’s testimony is always required, save in exceptional circumstances. Only the trial judge can decide otherwise.
- Police investigation
- The investigator (not necessarily the same person who took the statement) conducts an investigation to verify the validity of the complaint.
- Laying of charges
- Once the investigation is complete, the investigator submits his or her report to the Crown Prosecutor, who makes sure that the file contains enough evidence to support legal proceedings.
- If the complaint is upheld, the suspect is brought before a judge and informed of the charges brought against him or her. The suspect then enters a plea of guilty or not guilty.
- Guilty plea
- If the accused pleads guilty, there will be a hearing to determine his or her sentence.
- The sanction ordered by the judge, which can include a reprimand, jail time, etc.
- Not guilty plea
- If the accused pleads not guilty, the following steps take place.
- Preliminary hearing
- This step takes place shortly after the defendant pleads not guilty. The purpose is to determine if there is sufficient evidence to bring the accused to trial. If so, then a trial will take place.
- The purpose of the trial is to determine whether the accused did indeed commit the crime with which he or she is charged. Attorneys for the defence and the Crown present their evidence, and witnesses are called by both parties to testify.
- After the trial, the judge renders a decision regarding the guilt or innocence of the accused.
The accused is found guilty of one of more charges, and his or her sentence is read out in court.
The accused is acquitted of the charges against him or her.
A “not guilty” verdict does not mean the offence never occurred. In our justice system, “not guilty” simply means that there is reasonable doubt as to the guilt of the accused.