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Sexual Assault and Consent

[Disclaimer required: this is for informational purposes and should not be treated as legal advice]

When most people think about sexual assault, they tend to think “rape”. In Canada, there is a broad offence known as “Sexual Assault”. Under the umbrella of “Sexual Assault”, there are numerous actions that can establish the offence. Consent is a crucial factor in all cases of “Sexual Assault

The Supreme Court of Canada has held that the act of “Sexual Assault” does not depend solely on contact with any specific part of the human anatomy but rather it is an act of a sexual nature that violates the sexual integrity of the victim. There are certain relevant factors that are considered:

  • The part of the body touched

  • The nature of the contact

  • The situation in which the contact occurred

  • The words and gestures accompanying the act

  • All other circumstances surrounding the act

  • Any threats that may or may not be accompanied by force

Is “Rape” a Criminal Offence?

There is no offence known as “rape” in the Criminal Code of Canada. Rather, the Criminal Code of Canada classifies these offences under the broad heading of “Sexual Assault”.

Just like other “Assault” offences, there are different types of “Sexual Assault” that can occur based upon the circumstances surrounding the event. Examples: “Sexual Assault with a Weapon” and “Aggravated Sexual Assault”.

Why Is Consent Important?

Consent is a crucial factor in cases of “Sexual Assault” because it goes to the heart of a person’s sexual integrity. When an individual freely consents to an act of a sexual nature, it establishes that the individual has made an informed decision regarding the act. In order words, they are agreeing to voluntarily participate in the specific sexual act.

Can a Person Limit the Type of Consent They Give?

Consent can be limited. For example: if an individual agrees to hold hands with you, it does not follow that the individual is also consenting to other physical contact.

Once Consent Is Given, Does It Have to Be Given Again?

There is a misconception that once consent is given, it need not be obtained again. Consent is not mutually binding. It must be given every time individuals engage in sexual acts.

This is best described in the context of a married couple. Though there is regular physical contact between partner A and partner B, there may be an occasion where partner B does not wish to participate. If partner A attempts to force their way upon partner B, a “Sexual Assault” has been committed.

Can Consent Be Taken Away After It Was Given?

Yes, a person has the right to change their mind. Even though they might initially consent to a sexual act, during the course of the act, if they say “stop” or indicate they no longer want to engage in the act, the other party must stop.

Do I Have to Get Consent If I Am Married or Cohabitating?

Consent is required in ALL relationships. Allegations of “Sexual Assault” between married couples often come before the courts.

Please keep in mind the above information is for educational purposes and should not be used as actual legal advice. If you or someone you know has been charged with “Sexual Assault”, contact a criminal defence lawyer in Brampton not. Call the law offices of Passi & Patel now at (905) 459-0004 to arrange a free consultation.

The Ignition Interlock Program: “Stream A” v. “Stream B”

The Highway Traffic Act requires drivers convicted of certain driving offences under the Criminal Code, including impaired driving offences (Impaired Driving, Excess Blood Alcohol, and Refuse Breath Sample), to serve driver’s licence suspensions as follows:

  1. First conviction: 1 year suspension
  2. Second conviction: 3 year suspension
  3. Third conviction: Indefinite suspension with the possibility of reinstatement after 10 years if prescribed conditions are met
  4. Fourth conviction: Indefinite (i.e. lifetime) with no right of appeal

Drivers convicted for a first-time of an alcohol-impaired offence under the Criminal Code may be eligible to participate in the Reduced Suspension with Ignition Interlock Conduct Review Program. If accepted into the Program, eligible drivers will have their driver’s licence suspensions reduced (see below: Stream “A” v. Stream “B”).

An Ignition Interlock System is a device that requires the driver to provide a breath sample in order to operate the vehicle. If the device detects alcohol in the breath sample, the vehicle’s engine will not start. Ultimately, any information obtained through an inspection of the device may be forwarded to the Registrar of Motor Vehicles.

Drivers may be eligible for the Program if they meet the following requirements:

  1. Driver’s licence has been suspended for a period of 1 year pursuant to section 41 of the Highway Traffic Act as a result of an alcohol-impaired driving conviction under sections 253, 254, or 255(1) of the Criminal Code (a first offender as determined by the H.T.A.)
  2. The circumstances of the offence did not involve impairment by drugs or a combination of drugs and alcohol.
  3. The driver was not convicted of an offence under section 255 of the Criminal Code where bodily harm or death is caused.
  4. The driver has not been convicted of a Drive while Disqualified offence under section 259(4) of the Criminal Code within the 5 years preceding their alcohol-impaired driving conviction.
  5. The driver is not subject to a court order under the section 259(1.1) of the Criminal Code denying them authorization to drive a motor vehicle equipped with an ignition interlock device during the prohibition period.
  6. The driver is not subject to an ignition interlock licence condition on the date of the offence.
  7. The driver has not previously been granted a reduction (to 10 years) of an indefinite driver’s licence suspension.
  8. The driver must complete an assessment with the Centre for Addiction and Mental Health (CAMH), “Back on Track Program”, and pay the prescribed fee (approximately $578.00 plus HST). Thereafter, completion of the remedial program is required.
  9. The driver must enter into a lease agreement with an approved ignition interlock service provider (approximate cost: $1300.00 per year).During the ignition interlock phase, the driver must:
  10. Only drive a vehicle equipped with the ignition interlock and comply with the program requirements, and install the interlock within 30 days of reinstatement.
  11. Attend all appointments with the ignition interlock service provided in order to monitor program compliance.

Stream “A” v. Stream “B”:

Stream “A”:

If the driver pleads guilty and is sentenced within 90 days of the offence date, then the driver is eligible for Stream “A” of the ignition interlock program. Under Stream “A”, participants are subject to a 3 month absolute driving prohibition, followed by a 9 month period where they are permitted to drive a vehicle with an approved ignition interlock device. Please note, the minimum periods may be elevated by the presiding sentencing judge.

Stream “B”:

If the driver pleads guilty or is found guilty later than 90 days after the offence date, and otherwise meets the requirements of the Program, then they will be eligible for Stream “B”. Under Stream “B”, participants are subject to a minimum 6 month absolute driving prohibition, followed by a 12 month period where they are permitted to drive a vehicle with an approved ignition interlock device. Please note, the minimum periods may be elevated by the presiding sentencing judge.

Caveat Emptor:

Given Stream “A” is predicated upon a guilty plea, it may not be the right fit for every individual. The guilty plea will result in a criminal record, and there a number of associated negative implications.