A sexual assault conviction carries some of the most serious consequences in Canadian criminal law. Sentencing in this area has become more severe in recent years, particularly following the Supreme Court of Canada decision in R v Friesen. The consequences of a conviction also extend well beyond the sentence imposed by the court.
This post outlines what to expect on sentencing following a sexual assault conviction in Canada.
Maximum Penalties
The Criminal Code sets out the maximum penalties for the three main sexual assault offences:
- Section 271 (sexual assault): maximum of 10 years’ imprisonment on indictment, or 18 months on summary conviction. Where the complainant is under 16, the maximum increases to 14 years on indictment, along with a mandatory minimum sentence of one year
- Section 272 (sexual assault with a weapon, threats, or causing bodily harm): maximum 14 years. There are mandatory minimums in some circumstances, including where a firearm is used
- Section 273 (aggravated sexual assault): maximum life imprisonment. Mandatory minimum sentences also apply in some firearm-related circumstances
The maximum penalty is rarely imposed for a first offence, but it defines the upper limit of sentencing. Where a particular case falls within the available range depends on a wide range of aggravating and mitigating factors.
Mandatory Minimums
Some sexual assault offences carry mandatory minimum sentences. These are most commonly triggered where the complainant is under 16, where a firearm is involved, or where specific aggravating factors are present. Mandatory minimums limit judicial discretion and may require a custodial sentence even where the offender has no prior criminal record.
Some mandatory minimum provisions in sexual offence offences have been found unconstitutional in particular contexts by appellate courts. The law in this area continues to evolve, and any applicable minimum sentence must be assessed in light of current legislation and case law.
How a Sentence Is Decided
Sentencing in Canada is governed by the principles in section 718 of the Criminal Code. The fundamental purpose of sentencing is to contribute to respect for the law and a just society through sanctions that meet one or more of the following objectives:
- Denunciation
- Deterrence, both general and specific
- Separation of offenders from society where necessary
- Rehabilitation
- Reparation for harm done
- Promoting a sense of responsibility in offenders and acknowledgement of harm done to victims
Section 718.01 provides that, in cases involving offences against children, denunciation and deterrence are to be given primary consideration. This significantly shapes sentencing in sexual assault cases involving young complainants.
Aggravating and Mitigating Factors
The judge considers all the circumstances of the offence and the offender in determining a fit sentence.
Common aggravating factors in sexual assault sentencing include:
- The young age of the complainant
- A position of trust, authority, or dependency over the complainant
- Repeat or prolonged offending
- Use of violence, threats, or weapons
- Significant physical or psychological harm to the complainant
- A history of similar offences
Common mitigating factors include:
- A guilty plea, particularly an early one
- Genuine expressions of remorse
- No prior criminal record
- Steps taken toward rehabilitation, such as counselling or treatment
- Personal circumstances, including age, mental health, and Indigenous background under the Gladue framework
R v Friesen and the Modern Sentencing Landscape
In R v Friesen, the Supreme Court of Canada held that sentences for sexual offences against children had been generally too low and required reassessment to properly reflect the gravity of these offences.
The decision has had a significant impact on sentencing across Canada. Courts have emphasized substantially increased sentences in appropriate cases, particularly where aggravating factors are present, and have moved away from earlier sentencing ranges that were often lower.
The Court also confirmed that psychological and emotional harm is as serious as physical harm, and that courts should not wait for long-term consequences to be proven before imposing significant sentences.
Ancillary Orders
In addition to the sentence itself, a sexual assault conviction often results in a number of ancillary orders:
- SOIRA registration: The Sex Offender Information Registration Act requires offenders to register with police and keep their information up to date for a set period or for life, depending on the offence and sentence imposed.
- DNA orders: Many sexual offences are designated offences under the National DNA Data Bank scheme, requiring the offender to provide a DNA sample on conviction.
- Weapons prohibitions: Courts typically impose a prohibition on possessing firearms and other weapons, often for ten years or longer, depending on the circumstances.
- Section 161 orders: Where the offence involves a child, the court may impose restrictions on attending places where children are present, working in positions of trust or authority over children, and contacting persons under 16.
- No-contact orders: Courts commonly prohibit the offender from contacting the complainant and, in some cases, specified family members or witnesses.
Collateral Consequences
Beyond the formal sentence, a sexual assault conviction can carry significant consequences that affect many areas of the offender’s life:
- Immigration: Non-citizens face potential removal from Canada. A sentence of more than six months, or any conviction for serious criminality, can trigger inadmissibility under the Immigration and Refugee Protection Act
- Employment: Many professions require the disclosure of criminal records or conduct that could lead to discipline. This is especially relevant in fields such as education, healthcare, law, and roles involving vulnerable persons
- Travel: A sexual assault conviction creates problems with travel to the United States and other countries
- Family law: A conviction may affect parenting arrangements, including custody and access, in current or future family law proceedings
- Reputation: Court records are generally public, and the reputational and professional consequences of a conviction can be severe
Counsel considers these consequences at every stage of the case, including bail, resolution discussions, trial strategy, and sentencing.
How Sentencing Works at the Hearing
If the accused is convicted at trial or pleads guilty, the case proceeds to a sentencing hearing. The Crown and defence file written submissions and may also present evidence.
Victim impact statements are filed and may be read aloud in court. The accused has the right to address the court directly.
The judge then imposes sentence and provides reasons for the decision. Either party may appeal the sentence, and sentence appeals are relatively common in sexual assault cases.
Why This Matters Before Trial
The potential sentence shapes nearly every decision in a sexual assault case. It influences bail, resolution discussions, and whether a case proceeds to trial.
Counsel who understand the sentencing landscape can provide realistic advice about what is at stake and what different outcomes may look like.
Concerned about the consequences of a sexual assault charge?
Sentencing for sexual assault is severe and the collateral consequences can be long-lasting. Contact us to discuss your case and the strategy and the options available.
