Criminal Code (R.S.C., 1985, c. C-46)

Marginal note: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.

• Marginal note:Aggravated sexual assault

  (2) Every person who commits an aggravated sexual assault is guilty of an indictable offence and liable

  • (a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of

    • (i) in the case of a first offence, five years, and

    • (ii) in the case of a second or subsequent offence, seven years;

  • (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

  • (a.2) if the complainant is under the age of 16 years, to imprisonment for life and to a minimum punishment of imprisonment for a term of five years; and

  • (b) in any other case, to imprisonment for life.

• Marginal note:Subsequent offences

  (3) In determining, for the purpose of paragraph (2)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

  • (a) an offence under this section;

  • (b) an offence under subsection 85(1) or (2) or section 244 or 244.2; or

  • (c) an offence under section 220, 236, 239 or 272, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence.

  However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

• Marginal note:Sequence of convictions only

  (4) For the purposes of subsection (3), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.

Marginal note:Meaning of consent

• 273.1 (1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

• Marginal note:Consent

  (1.1) Consent must be present at the time the sexual activity in question takes place.

• Marginal note:Question of law

  (1.2) The question of whether no consent is obtained under subsection 265(3) or subsection (2) or (3) is a question of law.

• Marginal note:No consent obtained

  (2) For the purpose of subsection (1), no consent is obtained if

  • (a) the agreement is expressed by the words or conduct of a person other than the complainant;

  • (a.1) the complainant is unconscious;

  • (b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1);

  • (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;

  • (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

  • (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

• Marginal note:Subsection (2) not limiting

  (3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.

Marginal note:Where belief in consent not a defence

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

• (a) the accused’s belief arose from

  • (i) the accused’s self-induced intoxication,

  • (ii) the accused’s recklessness or wilful blindness, or

  • (iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained;

• (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or

• (c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

Marginal note:Removal of child from Canada

• 273.3 (1) No person shall do anything for the purpose of removing from Canada a person who is ordinarily resident in Canada and who is

  • (a) under the age of 16 years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section 151 or 152 or subsection 160(3) or 173(2) in respect of that person;

  • (b) 16 years of age or more but under the age of eighteen years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section 153 in respect of that person;

  • (c) under the age of 18 years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section 155, subsection 160(2) or section 170, 171, 267, 268, 269, 271, 272, 273 or 320.102 in respect of that person; or

  • (d) under the age of 18 years, with the intention that an act be committed outside Canada that, if it were committed in Canada, would be an offence against section 293.1 in respect of that person or under the age of 16 years, with the intention that an act be committed outside Canada that, if it were committed in Canada, would be an offence against section 293.2 in respect of that person.

• Marginal note:Punishment

  (2) Every person who contravenes this section is guilty of

  • (a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or

  • (b) an offence punishable on summary conviction.

Marginal note:Corroboration not required

274 If an accused is charged with an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 271, 272, 273, 286.1, 286.2 or 286.3, no corroboration is required for a conviction and the judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration.

Marginal note:Rules respecting recent complaint abrogated

275 The rules relating to evidence of recent complaint are hereby abrogated with respect to offences under sections 151, 152, 153, 153.1 and 155, subsections 160(2) and (3) and sections 170, 171, 172, 173, 271, 272 and 273.

Admissibility of Sexual Activity Evidence

Marginal note:Evidence of complainant’s sexual activity

• 276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273 or any other offence under this Act, or any other Act of Parliament, that is of a sexual nature or that is committed for a sexual purpose, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

  • (a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

  • (b) is less worthy of belief.

• Marginal note:Conditions for admissibility

  (2) In proceedings in respect of an offence referred to in subsection (1), evidence that the complainant has engaged in sexual activity, other than the sexual activity that forms the subject matter of the charge, whether with the accused or with any other person, shall not be adduced unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.01, 276.02, 276.06, 276.1, 278.3 and 278.35, as the case may be, that the evidence is not being adduced for the purpose of supporting an inference described in subsection (1), is relevant to an issue at trial, is of specific instances of sexual activity and

  • (a) if sought to be adduced by or on behalf of the accused, has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice; or

  • (b) if sought to be adduced by or on behalf of the prosecutor, has probative value that is not outweighed by the danger of prejudice to the proper administration of justice.

• Marginal note:Factors that judge must consider

  (3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

  • (a) the interests of justice, including the right of the accused to make a full answer and defence;

  • (b) society’s interest in encouraging the reporting of sexual assault offences;

  • (c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

  • (d) the need to remove from the fact-finding process any discriminatory belief or bias;

  • (e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;

  • (f) the potential prejudice to the complainant’s personal dignity and right of privacy;

  • (g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

  • (h) any other factor that the judge, provincial court judge or justice considers relevant.

• Marginal note:Interpretation

  (4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.

• Marginal note:For greater certainty

  (5) For the purposes of this section, and for greater certainty, evidence of sexual activity includes evidence of sexual inactivity.

Procedure for Accused

Marginal note:Application for hearing

• 276.01 (1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 276.02 to determine whether evidence is admissible under subsection 276(2).

• Marginal note:Form and content

  (2) The application must be made in writing and be accompanied by an affidavit setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial, and a copy of the application and the affidavit must be given to the prosecutor and filed with the clerk of the court.

• Marginal note:Jury and public excluded

  (3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.

• Marginal note:Hearing

  (4) If the judge, provincial court judge or justice is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and filed with the clerk of the court at least 60 days previously or within any shorter interval that the judge, provincial court judge or justice may allow in the interests of justice, and that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under section 276.02 to determine whether the evidence is admissible under subsection 276(2).

• Marginal note:Copy to complainant

  (5) If the judge, provincial court judge or justice grants the application and agrees to hold the hearing, the accused shall cause a copy of the application to be given to the complainant by a person other than the accused.

Marginal note:Hearing — jury and public excluded

• 276.02 (1) The jury and the public shall be excluded from a hearing to determine whether evidence is admissible under subsection 276(2).

• Marginal note:Complainant not compellable

  (2) The complainant is not a compellable witness at the hearing but may appear and make submissions.

• Marginal note:Right to counsel

  (3) The judge, provincial court judge or justice shall, as soon as feasible, inform the complainant who participates in the hearing of their right to be represented by counsel.

• Marginal note:Determination and reasons

  (4) At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part of it, is admissible under subsection 276(2) and shall provide reasons for that determination, and

  • (a) if not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted;

  • (b) the reasons must state the factors referred to in subsection 276(3) that affected the determination; and

  • (c) if all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.

• Marginal note:Record of reasons

  (5) The reasons provided under subsection (4) must be entered in the record of the proceedings or, if the proceedings are not recorded, must be provided in writing.

Marginal note:Publication prohibited

• 276.03 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:

  • (a) the contents of an application made under subsection 276.01(1);

  • (b) any evidence taken, the information given or the representations made at the consideration of an application made under subsection 276.01(1) or at a hearing under section 276.02;

  • (c) the decision of a judge, provincial court judge or justice under subsection 276.01(4), unless the judge, provincial court judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted;

  • (d) the determination made and the reasons provided under subsection 276.02(4), unless that determination is that evidence is admissible or the judge, provincial court judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and the reasons may be published, broadcast or transmitted.

• Marginal note:Exception

  (1.1) Subsection (1) does not apply if the disclosure of any information referred to in paragraphs (1)(a) to (d) is

  • (a) made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community;

  • (b) made by the complainant or any witness and about that complainant or witness and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by this section; or

  • (c) made by the complainant or any witness when the purpose of the disclosure is not one of making the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the complainant or the witness.

• Marginal note:Offence

  (2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.