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The Criminal Code of Canada and Sexual Harassment

When sexual harassment leads to sexual assault or stalking, we are protected by the Criminal Code of Canada. This page begins with the sections of the Criminal Code pertaining to sexual assault followed by a reader-friendly interpretation. The sections of the Code pertaining to Criminal Harassment are then noted and again followed by an interpretation.

Sexual Assault

Section 265 Assault

(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.
Application

(2) This section 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.

Consent
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.


Accused's belief as to consent
(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.

Section 266 Assault
Every one who commits an assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.
Section 271 Sexual Assault
(1) Every one who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
Section 272 Sexual assault with a weapon, threats to a third party or causing bodily harm.
(1) Every person commits an offence who, in committing a sexual assault,

(a) carries, uses or threatens to use a weapon or an imitation of a weapon;
(b) threatens to cause bodily harm to a person other than the complainant;
(c) causes bodily harm to the complainant; or
(d) is a party to the offence with any other person.
Punishment
(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for a term not exceeding fourteen years.


Section 273 Aggravated sexual assault

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

(2) Every person who commits an aggravated sexual assault is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and in any other case, to imprisonment for life.
(b) in any other case, to imprisonment for life.
Section 273.1 Meaning of "consent"
(1) Subject to subsection (2) and subsection 265 (3), "consent" means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

Where no consent is obtained (2)
No consent is obtained, for the purposes of sections 271, 272 and 273, where

(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to the activity;
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
Subsection (2) not limiting (3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.

Where belief in consent not a defence 273.2
It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

(a) the accused's belief arose from the accused's
(i) self-induced intoxication, or
(ii) recklessness or willful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

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Interpretation of Definitions of Sexual Assault in the Criminal Code of Canada

Definitions of Sexual Assault:
No one should touch you sexually without your consent. This includes kissing, touching, sexual intercourse, anal intercourse, and oral sex.

Sexual Assault: It is a crime when someone forces any form of sexual activity on another person without that person’s consent.

Sexual Assault with a Weapon: When, during a sexual assault, someone uses a weapon, or threatens to use a weapon (imitation or real); when someone threatens to cause bodily harm to a third person (e.g. a family member or friend); when someone causes bodily harm to another person; when more than one person assaults someone in the same incident.

Aggravated Sexual Assault: When being sexually assaulted, someone is wounded, maimed, disfigured, brutally beaten, or is in danger of losing their life.

Meaning of Consent:
Consent is the voluntary agreement to engage in the sexual activity in question. No one can touch you sexually unless you agree voluntarily.

No one else, such as a spouse or sponsor (if you’re an immigrant) can consent on your behalf.
No one can touch you sexually unless you are capable of consenting, for instance sober enough to know what you are agreeing to.
No one can induce you to have sexual contact by abusing a position of trust, power, or authority, for instance where a professor pressures you to have sex by offering benefits or threatening retaliation.
No means no at any time, so sexual contact cannot continue where agreement has been withdrawn.
Mere silence or lack of resistance to sexual contact cannot be equated with consent.
Only yes means yes. Make sure your partner explicitly agrees.

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Stalking/ Criminal Harassment

The crime of stalking is defined legally as criminal harassment. The following section of the Criminal Code of Canada pertains to criminal harassment:

Criminal Harassment
264. (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

Prohibited conduct
(2) The conduct mentioned in subsection (1) consists of

(a) repeatedly following from place to place the other person or anyone known to them;
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
(d) engaging in threatening conduct directed at the other person or any member of their family.

Punishment
(3) Every person who contravenes this section is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.

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Interpretation of the Criminal Code Definition of Criminal Harassment

The crime of stalking/ criminal harassment can happen in any relationship and can lead to violence. It involves repeated actions by another person that causes you to fear for your safety. No one has the right to make you feel unsafe.

It is a crime when someone, against your wishes:

  • follows, visits, calls, or writes you, over & over again.
  • watches your home or workplace.
  • does something threatening to you or a family member.*


*Source: Govt. of Newfoundland & Labrador, Department of Justice, Victim Services.

To view the complete Criminal Code of Canada, visit the Department of Justice, Canada.

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