Canadian Criminal Law/Offences/Aggravated Sexual Assault

Aggravated Sexual Assault
s. 273 of the Crim. Code
Election / Plea
Crown Election	Indictable
Jurisdiction	Prov. Court SC Judge + PI (I) SC Jury + PI (I) (536(2))
Indictable Dispositions
Avail. Disp.	Discharge (730) Suspended Sentence (731(1)(a)) Fine (734) Fine + Probation (731(1)(b)) Jail (718.3, 787) Jail + Probation (731(1)(b)) Jail + Fine (734) Conditional Sentence (742.1)
Minimum	Restricted firearm: 5 years (first) 7 years (second or more) Other firearms: 4 years Victim younger than 16: 5 years
Maximum	Life imprisonment
References
Offence Elements Sentence Principles Sentence Digests
Comments
DNA Primary designated offence SOIRA designated offence DO/LTO primary designated offence

Legislation

Aggravated sexual assault
273. (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.

...

R.S., 1985, c. C-46, s. 273; 1995, c. 39, s. 146; 2008, c. 6, s. 29; 2009, c. 22, s. 11; 2012, c. 1, s. 27.

– CCC

Proof of Offence

1. Elements of Sexual Assault:
   1. the accused assaulted the victim (e.g. non-consentual touching)
   2. the sexual nature of the contact;
   3. the absence of consent;
   4. the age of the complainant;
   5. the age of the accused;
   6. the relationship between the complainant and accused;
   7. medical evidence (if any)
2. Elements of Aggravated Assault:
   1. the injuries amounted to the victim being (See Injuries):
      1. wounded,
      2. maimed,
      3. disfigured, or
      4. had life endangered

Interpretation

This offence is a straight indictable offence. Under s.536(2), the accused can elect the mode of trial.

HIV Infection

The Crown must prove as an essential element to proving the offence in a case of HIV infection that the victim's consent to intercourse was vitiated by the accused's fraudulent concealment of his infection. Specifically, the crown should prove:

1. dishonest act to hide HIV status or failure to disclose HIV status;
2. the victim's lack of awareness of the infection
   1. knowledge that would have allowed her to refuse sex and
   2. intercourse would be a significant risk of bodily harm

Defences

• Consent

Typical Motions or Orders

Witness motions

• Exclusion of public from court (486)
• Prohibition of self-represented accused from Cross-examining a witness under the age of 18 years (486.3)
• Sexual Offence Publication Ban (486.4)
• Publication Ban of in relation to victims, witnesses or justice system participants (486.5)
• Witness Screen (486.2)
• Testimony by Video (714.1)