I. The Crime of Sexual Assault
A. The (Actus Reus) Issue
Criminal Code: Ss. 271-273.1
Sexual assault
271. (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.
(2) [Repealed, R.S., 1985, c. 19 (3rd Supp.), s. 10]
R.S., 1985, c. C-46, s. 271; R.S., 1985, c. 19 (3rd Supp.), s. 10; 1994, c. 44, s. 19.
Sexual assault with a weapon, threats to a third party or causing bodily harm
272. (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.
R.S., 1985, c. C-46, s. 272; 1995, c. 39, s. 145.
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. v. Chase [1987] Sexual assault does not require genital contact.
2 S.C.R. 293
FACTS
Man came into neighbour’s house, fondled her breasts (he grabbed her breasts) etc… and tried to get her to sleep with him. When she fought back, he said that he was going to tell everybody that she raped him. He was convicted for sexual assault and the New Brunswick C.A. changed the conviction to common assault. Court of Appeal reduced the sentence from 8 months to 6.
ISSUE
What does sexual assault entail?
HELD
Crown’s appeal allowed. Original sexual assault conviction restored.
RATIO
The test for the recognition of sexual assault does not depend solely on contact with specific areas of the human anatomy. The test to be applied in determining whether the impugned conduct has the requisite sexual nature
NB: for Barron, infra, we are only interested in the court’s discussion of the “unlawful” act issue, and not the discussion of the “criminal negligence” issue.
R. v. Barron (1984) The deceased impliedly consented to being pushed.
39 C.R. (3d) 379 (Ont. H.C.)
FACTS
Barron, a 16-year-old teenager, threw a party at his grandmother’s house while the latter was away. Other teens came and they brought beer and consumed it. Barron and the deceased, a teen, were upstairs and decided to go downstairs and “streak” the girls at the party. The deceased clearly changed his mind at the top of the stairs and Barron gave him a push to egg him on. The push caused the deceased to lose his balance and tumble downstairs. The boy eventually dies. Barron behaves strangely, kicks everyone out of the house
ISSUES
What constitutes an unlawful act?
