Case Studies On Sexual Assault And Abuse
I. OVERVIEW OF SEXUAL ASSAULT UNDER CANADIAN LAW
Sexual offences in Canada are primarily governed by Part V of the Criminal Code (Criminal Code, RSC 1985, c C-46).
1. Sexual Assault (s.271)
Definition: Non-consensual touching of a sexual nature.
Penalties: Up to 10 years imprisonment.
2. Sexual Assault with a Weapon, Threats, or Causing Bodily Harm (s.272)
Aggravated sexual assault: Maximum 14 years imprisonment.
Key factor: Aggravating circumstances like weapon, physical harm, or threats.
3. Consent (s.273.1)
Consent must be voluntary and ongoing.
Cannot be given if: underage, intoxicated, unconscious, or coerced.
4. Sexual Interference and Exploitation (s.151–153)
Involves sexual activity with children or persons in positions of trust.
Key Judicial Principles
Consent is central: Silence or passivity ≠ consent.
Evidence assessment: Complainant credibility is evaluated carefully; corroboration is not mandatory.
Reasonable steps: Courts consider whether the accused took reasonable steps to ascertain consent.
II. IMPORTANT CASES IN SEXUAL ASSAULT LAW
1. R. v. Ewanchuk (1999, SCC)
Issue: Definition of consent.
Facts
Ewanchuk, a mentor, made sexual advances toward a student during a private lesson. He argued that consent was implied because the complainant did not physically resist.
Decision
SCC held: Consent must be affirmative, explicit or implied through conduct.
Silence or lack of resistance does not equal consent.
Judges emphasized that the burden is on the accused to establish that the complainant voluntarily consented.
Significance
Landmark case in defining affirmative consent in Canada.
Established that coercion, pressure, or intimidation negates consent.
2. R. v. J.A. (2011, SCC)
Issue: Consent and unconsciousness.
Facts
J.A. engaged in sexual activity with a partner while she was unconscious. He argued prior consent applied.
Decision
SCC ruled that consent cannot be given while unconscious.
Ongoing consent is required; prior agreement does not permit sexual activity once the person is incapacitated.
Significance
Sets clear boundaries: sexual activity with someone unconscious is automatically assault.
Reinforces the principle that consent must be active and ongoing.
3. R. v. Osolin (1993, SCC)
Issue: Credibility and evidence in sexual assault trials.
Facts
Osolin was accused of sexual assault. The complainant had inconsistencies in testimony. Defence argued the inconsistencies undermined credibility.
Decision
SCC clarified that minor inconsistencies do not automatically discredit the complainant.
Courts must assess totality of evidence, including context, trauma response, and reliability.
Significance
Influenced modern approach to rape shield provisions.
Protects complainants from being unfairly discredited due to memory gaps.
4. R. v. Seaboyer (1991, SCC)
Issue: Admissibility of prior sexual history evidence.
Facts
Seaboyer was accused of sexual assault. Defence sought to introduce the complainant’s prior sexual history to suggest consent.
Decision
SCC held that prior sexual history is generally inadmissible under s.276 of the Criminal Code (Rape Shield law).
Such evidence is only admissible if highly relevant and probative to an issue in trial.
Significance
Prevents unfair prejudice from victim-blaming.
Ensures trials focus on the alleged incident, not complainant’s past.
5. R. v. Darrach (2000, SCC)
Issue: Standard for corroboration in sexual assault trials.
Facts
Darrach was charged with sexual assault; defence argued the complainant’s evidence needed corroboration.
Decision
SCC ruled: no corroboration is required; a conviction can rest on the complainant’s testimony alone.
Courts must carefully assess credibility, but lack of corroboration does not automatically result in acquittal.
Significance
Strengthens complainant protection.
Clarifies that the court can rely solely on credible testimony.
III. ADDITIONAL CASES (Briefly)
R. v. Lavallee (1990, SCC) – Recognized battered woman syndrome in sexual and domestic violence cases.
R. v. H.(R.) (1999, SCC) – Clarified capacity to consent for minors.
R. v. R.E.M. (2018, ONCA) – Social media communications and consent interpretation.
IV. SUMMARY OF PRINCIPLES FROM CASE LAW
| Principle | Key Case(s) |
|---|---|
| Consent must be affirmative, ongoing, voluntary | Ewanchuk, J.A. |
| Silence or passivity ≠ consent | Ewanchuk |
| Consent cannot be given while unconscious | J.A. |
| Prior sexual history generally inadmissible | Seaboyer |
| No corroboration required for conviction | Darrach |
| Complainant credibility assessed in context, not discredited for inconsistencies | Osolin |
V. CONCLUSION
Sexual assault and abuse law in Canada emphasizes:
Affirmative, ongoing consent
Protection of complainants from prejudicial evidence
Ability of courts to convict based on credible testimony alone
Recognition of trauma and context in evidence evaluation
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