The offence of sexual assault is outlined in section 271 of the Criminal Code.
An individual commits a sexual assault when they apply force to another person without consent, and that force violates the sexual integrity of the other person. A sexual assault can be anything from non-consensual sexual intercourse to a non-consensual kiss or hug.
Person A and person B are colleagues. Person A kisses person B without first getting consent.
Person A and person B are in an intimate relationship. Person A wants to have sex and person B does not. Person A forces intercourse.
R. v A.M.,  ONCA 154
In R. v A.M., the offender was convicted of one count of sexual assault after engaging in non-consensual sexual activity with a younger family friend. The offender assaulted the complainant after she passed out at his house, having drank a large amount of alcohol. The complainant woke up in the offender’s bed to him touching her genitals.
R. v. Tahan,  ONSC 1103
In R. v. Tahan, the offender was charged with sexual assault after sexually assaulting a drunk woman he met at a fall festival. The victim and offender were unknown to one another prior to the assault and the victim had no recollection of the assault due to her level of intoxication. The offender was convicted after a rape kit was conducted on the victim.
Offence Specific Defences
No Sexual Activity
In situations where an individual has been falsely accused of sexual assault, they may argue that sexual activity did not occur, or the touching was not sexual in nature.
In situations where it is undisputed that sexual activity occurred, the accused may argue that the complainant consented to the sexual activity at the time it occurred.
Mistaken Belief in Consent
Similar to the consent defence, in situations where it is undisputed that the accused and complainant engaged in sexual activity, the accused may argue that they had a mistaken belief in consent. For this defence to be successful, the mistaken belief in consent must be reasonable.
Age of Consent and Relationship of Trust, Authority or Dependency
The age of consent is the age at which an individual can legally consent to sexual activity. In Canada, the age of consent is 16. This means that individuals under the age of 16 are legally incapable of consenting to sexual activity of any kind with an adult. Even if the young person is agreeable to the sexual activity, their consent is not valid, and the older individual has committed a sexual offence.
There are exceptions for individuals who are close in age with one another. For example, an individual who is 14 or 15 years old can consent to sexual activity with someone who is up to five years older than them, unless there is a position of trust, authority of dependency between them. An individual who is 12 or 13 can consent to sexual activity with someone who is up to 2 years older than them, unless there is a position of trust, authority of dependency between them.
Whether or not the older individual is in a position of trust, authority of dependency over the younger individual will be decided on a case-by-case basis. The court will consider all relevant factors before making a decision.