Section 271 of the Criminal Code: Sexual Assault Explained
Sexual assault is prosecuted under section 271, but the law that decides most cases is the definition of consent in section 273.1 and the limits on a mistaken belief in consent in section 273.2.
Section 271 makes sexual assault punishable by up to 10 years on indictment, rising to 14 years with a one-year minimum where the complainant is under 16. Consent is defined by section 273.1 as the voluntary agreement of the complainant to engage in the sexual activity in question.
What Is the Penalty Under Section 271?
Section 271 is hybrid. On indictment the maximum is 10 years. Where the complainant is under 16 years of age, the indictable maximum rises to 14 years and carries a minimum of one year. On summary conviction the maximum is two years less a day, and where the complainant is under 16 there is a six-month minimum.
| Circumstance | Indictable | Summary |
|---|---|---|
| Complainant 16 or over | Up to 10 years | Up to 2 years less a day |
| Complainant under 16 | Up to 14 years, minimum 1 year | Up to 2 years less a day, minimum 6 months |
Sexual assault is an assault within the meaning of section 265, committed in circumstances of a sexual nature. There is no separate definition of the act itself; what makes it sexual is assessed objectively in all the circumstances.
How Does the Criminal Code Define Consent?
Section 273.1(1) defines consent, for the purposes of sections 271, 272 and 273, as the voluntary agreement of the complainant to engage in the sexual activity in question. Section 273.1(1.1) requires that consent be present at the time the sexual activity takes place.
Section 273.1(2) sets out when no consent is obtained:
- the agreement is expressed by the words or conduct of someone other than the complainant;
- the complainant is unconscious;
- the complainant is incapable of consenting for any other reason;
- the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
- the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
- the complainant, having consented, expresses by words or conduct a lack of agreement to continue.
Section 265(3) applies as well, so consent obtained through force, threats, fear, fraud or the exercise of authority is not consent. Section 273.1(3) makes clear the list is not exhaustive.
Two points follow directly from the text. Consent cannot be given in advance for a period of unconsciousness, and consent can be withdrawn at any point.
When Is a Belief in Consent Not a Defence?
Section 273.2 removes the defence of honest belief in consent in defined circumstances. It is not a defence that the accused believed the complainant consented where that belief arose from self-induced intoxication, or from recklessness or wilful blindness, or from any circumstance in which section 265(3) or 273.1(2) or (3) says no consent was obtained.
It is also not a defence where the accused did not take reasonable steps, in the circumstances known to them at the time, to ascertain that the complainant was consenting.
And under section 273.2(c) it is not a defence where there is no evidence that the complainant's voluntary agreement was affirmatively expressed by words or actively expressed by conduct. Silence, passivity and the absence of resistance are not consent.
The practical meaning of section 273.2(b) is that an accused's own belief is judged against what they actually did to check. That is why these cases so often turn on what steps were taken rather than on what either person says they thought.
What Else Follows a Conviction?
Beyond the sentence, a conviction under section 271 ordinarily brings an order under the Sex Offender Information Registration Act, a DNA order, and in many cases a weapons prohibition. The SOIRA order is mandatory where section 490.012(1) applies and presumptive otherwise, with a defined exemption route under section 490.012(3). These consequences are separate from the sentence and are frequently the most enduring part of the outcome.
Because of that, the consequences of a conviction on a sexual offence extend well past any custodial term, and resolution discussions have to account for them rather than focusing only on the length of a sentence.
Frequently asked questions
Browse every answer on this siteTen years on indictment under section 271, rising to 14 years with a one-year minimum where the complainant is under 16. Summary prosecution carries up to two years less a day.
Section 273.1(1) defines it as the voluntary agreement of the complainant to engage in the sexual activity in question, and section 273.1(1.1) requires it to be present at the time the activity takes place.
No. Section 273.1(1.1) requires consent to be present at the time, and section 273.1(2)(a.1) states that no consent is obtained where the complainant is unconscious.
No. Section 273.2(a)(i) expressly removes the defence of belief in consent where that belief arose from the accused's self-induced intoxication.
No. Section 273.2(c) removes the defence where there is no evidence that voluntary agreement was affirmatively expressed by words or actively expressed by conduct.
Facing This Charge Yourself?
This page explains the law. If the question is what happens in your own case, these are the places to go next.
Other Parts of the Law Explained
- s. 320.13 — Dangerous operation
- s. 320.14 — Impaired operation
- Summary, indictable and hybrid
- What a criminal record is
This page is general information about Canadian law, not legal advice, and reading it does not create a lawyer-client relationship. Statutes are amended; provisions are described as at the consolidation reviewed when this page was written.
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