What is the Minimum Sentence for Sexual Assault in Canada?
It is important to know from the very start what kind of sexual assault you are charged with. The type of sexual assault you are charged with will change the minimum possible sentence. Some crimes are considered sexual, but they are not technically sexual assault. An example of this would be invitation to sexual touching, which is where a person, for a sexual purpose, tells or asks a person younger than 16 years-old to touch someone’s body. Some crimes are more serious examples of sexual assault, such as sexual assault causing bodily harm or aggravated sexual assault. The type of sexual assault this article will mainly focus on is simple sexual assault (sometimes called “sexual assault simpliciter”), and it is contrary to section 271 of the Criminal Code of Canada.
What is a Mandatory Minimum Sentence?
For some crimes, a judge might be restricted in what he sentences a person to. A mandatory minimum sentence is a sentence that the judge is not allowed to go under. For example, if a person is being sentenced for a crime that has a mandatory minimum of one year in jail, the judge would not be allowed to sentence that person to 90 days in jail. A judge can give a sentence that is higher than the mandatory minimum sentence, but not lower.
Sexual Assault with a Victim Younger than 16 Years-Old
The minimum sentence for sexual assault in Canada is different depending on the situation. First of all, there is only a mandatory minimum sentence for sexual assault if the victim was under the age of 16 years-old. If the victim was 16 years-old or older, there is no mandatory minimum sentence.
The mandatory minimum sentence also depends on how the Crown Attorney is prosecuting the case. The Crown Attorney can either proceed by indictment (used for more serious offences) or by summary conviction (used for less serious situations where a faster procedure is appropriate). If the Crown Attorney is prosecuting the case by indictment and the victim is under 16 years old, the mandatory minimum punishment is 1 year in jail. The maximum punishment in that case is 14 years in jail.
Sexual Assault with a Victim 16 Years-Old or Older
When the victim of sexual assault is 16 years of age or older, there are still maximum sentences, but there are no mandatory minimum sentences. The maximum sentence in an indictable case is 10 years. The maximum sentence in a summary case is 18 months. The judge has more options with sentences in these cases. The lowest sentence a judge can give is called a discharge.
What is a Discharge?
When a person is given a discharge, the person is found guilty of the offence but they are not convicted of the offence. Even though many people think that a person is convicted once the judge finds that person guilty, that is not true. A person who is given a discharge will not have a criminal record. That person can honestly say that they have not been convicted of the offence, even though they have been found guilty of the offence.
There are two types of discharges – absolute discharges and conditional discharges. When a person is given an absolute discharge, they are free to go. They do not have a criminal record, and any record of the discharge will be removed after one year from the day that person received the discharge.
When a person is given a conditional discharge, the judge finds that person guilty of the offence. But that person is not convicted of the offence. The difference between a conditional discharge and an absolute discharge is that a conditional discharge includes probation. Probation is a period of time when the convicted person will have to perform certain actions or make sure to not do certain things. For example, a part of a probation order may require a person to attend counselling. Or the person may have to complete a number of community service hours. Some of the probation orders are orders that a court has to make. People on probation will have to keep the peace and be of good behaviour. In a sex assault case, the judge will almost always order that the accused person not communicate with the victim. When the probation is completed, the conditional discharge becomes an absolute discharge.