The offence of sexual assault covers activity ranging from groping to non-consensual sexual intercourse. “Rape”, meaning non-consensual sexual intercourse, is no longer a separate offence under the Criminal Code. The term “rape” has been removed from the Criminal Code and non-consensual sexual intercourse is now prosecuted as sexual assault.
Similarly, sexual intercourse with an underage person is prosecuted as sexual assault, as the provisions in the Criminal Code setting out the offence of sexual assault specify the age of consent, now 16.
The offence of sexual assault is set out in Section 271 of the Criminal Code:
271. Everyone who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding 10 years and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding 18 months and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of 90 days.
There is no definition for “sexual assault” in the Criminal Code, but the term has been defined by the courts as an assault committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated. An assault as defined in Section 265(1) of the Criminal Code is the intentional application of force to another person without that person’s consent.
Civil Sexual Assault
If you have been accused of sexually assaulting someone, you can be sued in civil court for damages even if criminal charges have not been laid against you. Even if you have been tried and found not guilty, you can still be sued and there is no time limit in British Columbia for starting a civil action for sexual assault.
Damages awarded in sex assault lawsuits range from tens of thousands of dollars to hundreds of thousands of dollars. Further, civil claims are less difficult to prove than criminal charges because the standard of proof is not proof “beyond a reasonable doubt” but proof “on a balance of probabilities,” and unlike the accused in a criminal case, the defendant in a civil case can be forced to testify under oath.
At N.J. Preovolos Law Corporation, we have the expertise to defend criminal charges and civil claims relating to sexual misconduct. Call us for more information if you have been charged or sued or believe that you will likely be charged or sued. Start preparing now.
Child Luring & Child Pornography
(a) child luring
(b) making child pornography
(c) possessing and distributing child pornography
(d) accessing child pornography
These are serious offences carrying minimum sentences. Securing effective legal representation at the earliest possible opportunity is critical to presenting the strongest defence possible and avoiding self-incrimination.
With the advent of new technologies and devices, new offences have been added to the Criminal Code to prohibit activity that involves the use of the internet and computers for criminal offences relating to children or underage persons. The offence of “child luring” under Section 172.1 of the Criminal Code is one such offence.
Under Section 172.1 of the Criminal Code, it is an offence to use the internet to facilitate the commission of sexual interference and invitation to touch, among other offences. Section 172.1 states:
172.1 (1) Every person commits an offence who, by means of telecommunication, communicates with
(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence under subsection 153(1), section 155, 163.1, 170 or 171 or subsection 212(1), (2), (2.1) or (4) with respect to that person;
(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; or
(c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.
Child luring can be prosecuted summarily or by indictment, and the maximum sentence is six months for summary conviction prosecutions and two years for prosecution by indictment. Mandatory minimum sentences apply as well. The minimum sentence is 90 days when the offence is prosecuted summarily and six months when the offence is prosecuted by indictment.
Child Pornography – Making, Possessing and Distributing
It is an offense under Section 163.1 of the Criminal Code to make or print any child pornography or possess for the purpose of publication any child pornography. It is also an offence under Section 163.1 of the Criminal Code to transmit, make available, distribute, sell, advertise, import or export any child pornography or possess child pornography for any of the previously mentioned purposes. Simple possession of child pornography is also an offence under Section 163.1 of the Criminal Code.
The term “child pornography” is expressly defined in Section 163.1(a) of the Criminal Code as follows:
163.1 (1) In this section, “child pornography” means
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;
(b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act;
(c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or
(d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.
Section 163.1(5) provides that an accused charged with respect to a “visual representation” has a defence where he or she “took all reasonable steps” to ascertain that the person appearing in the visual representation was at least eighteen years old and, where the person appearing in the visual representation was eighteen or older, that he or she was not depicted as being under eighteen years of age.
Section 163.1(6) expressly provides that no person shall be convicted under Section 163.1 of the act alleged to constitute the offence
(a) has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and
(b) does not pose an undue risk of harm to persons under the age of eighteen years.
Other defences typically entail challenging the Crown’s proof of possession of the illegal materials or applying to exclude illegal materials from evidence based on breaches of the accused’s rights under the Charter of Rights and Freedoms.
Child Pornography – Accessing
It is an offence under Section 163.1(4.1) simply to access child pornography, and the offence is punishable by a maximum sentence of five years imprisonment and a minimum sentence of six months imprisonment if prosecuted by indictment, and by a maximum sentence of 18 months and to a minimum sentence of 90 days if prosecuted summarily. The offending material does not have to be stored on the accused’s computer or accessed more than once. It suffices if the accused knowingly transmits to himself or views child pornography only once.
Contact our Experienced Vancouver Sexual Offence Lawyers
There are a number of offences in the Criminal Code that relate to sexual misconduct. If you have reason to believe you are under investigation for a sex-related offence, there is no time to waste. Call our office for a consultation as soon as possible.
Our experienced Vancouver criminal defence lawyers are ready to help. You can do irreparable damage to your defence by speaking to the police or discussing the case with anybody, including your own friends and family.
Sex offences are prosecuted aggressively. In your mind, it might seem inconceivable that an incident which occurred a long time ago or seemed relatively minor would attract police interest and ultimately criminal charges. Unfortunately, you would be surprised.
The worst thing you can do if you find yourself under arrest or subject to investigation is trying to persuade the complainant, authorities or anyone else of your innocence. Leave that to the professionals.
Need more information? Learn about the Criminal Code and laws surrounding these areas as well:
The consequences of an allegation of sexual misconduct do not necessarily end with a criminal prosecution. You can find yourself defending a civil lawsuit for damages, and you can be sued at any time. There is no time limit in British Columbia for making such a claim.
At N.J. Preovolos Law Corporation, we can defend you against criminal charges and civil claims, and manage the two to ensure that your rights as an accused person in a criminal matter are not compromised by the requirements of civil litigation.