View source for Indecent Assault (Offence) (Repealed)

[[fr:Agression indécente (infraction abrogée)]]
{{Currency2|January|2024}}
{{HeaderRepealedOffences}}
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{{OffenceBox
|OffenceTitle=Indecent Assault
|OffencePage=Indecent Assault
|Section=149, 156
|Act={{OBCCC}}
|CrownElection={{OBIndictableElection}} 
|Jurisdiction={{OBJurisdictionAll-Under14}}
|Bail={{OBBailAll}}
|IndictableDisp= {{OBDispAll}} 
|IndictableMin= {{OBMinNone}} 
|IndictableMax= {{OBTime|10 years}} }}

==Overview==
{{seealso|Gross Indecency (Offence) (Repealed)}}

; Pleadings
{{PleadingsHeader-N}}
{{PleadingsIndictableList-N|s. 149, 156 [indecent assault] | {{Yes}} | {{Yes}} | {{No-Under14}} }} 
{{PleadingsEnd}} 

==Offence Wording==

{{quotation1|
; Indecent assault on female
149 (1) Every one who indecently assaults a female person is guilty of an indictable offence and is liable to imprisonment for five years and to be whipped.
<br>
; Consent by false representations
(2) An accused who is charged with an offence under subsection (1) may be convicted if the evidence establishes that the accused did anything to the female person with her consent that, but for her consent, would have been an indecent assault, if her consent was obtained by false and fraudulent representations as to the nature and quality of the act. 
<br>
1953-54, c. 51, s. 141.
|
}}

{{quotation1|
; Indecent assault on male
156. Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years and to be whipped.
<br>
1953-54, c. 51, s. 148.
|
}}

This was repealed in An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980-81-82-83, c. 125, s. 8. It came into force January 4, 1983.


==Proof of the Offence==

{{ElementHeader}}
{{ElementLeft}}

{{Proving|indecent assault|149, 156}}<Ref>
{{CanLIIR|Leroux|g1zjv|2013 SKQB 395 (CanLII)}} at para 71
</ref>
{{InitialElements}}
# {{box}} the culprit performed an act;
# {{box}} the culprit applied force to the complainant directly or indirectly.
# {{box}} the culprit intentionally applied force to the complainant in circumstances which had the quality of indecency.
# {{box}} the complainant was under the age of 14 years at the time of the alleged offence or that the complainant was the age of 14 years or older and did not consent to the application of force or did not consent validly due to the accused inducing the complainant to engage in the activity by abusing a position of trust, power, or authority.
# {{box}} the complainant is a female person (149) or male person (156) .

{{ElementEnd}}

{{reflist|2}}

==Interpretation==

; Elements of Proof
It is not necessary that the Crown prove that the accused intended to indecently assault the victim, on that he intended to commit assault, and it was in "circumstances of indecency."<Ref>
{{CanLIIRP|Resener|g97s6|1968 CanLII 817 (BC CA)|4 CCC 129}}{{perBCCA| J}} <Br>
{{CanLIIRP|O'Brien|k3dns  |1976 CanLII 2621 (NL SC)|31 CCC (2d) 396}}<br>
</ref>

; Definition of Indecent Assault
The term "indecent assault" was not defined in the Code. The case law defined it as "an assault that is committed in circumstances of indecency, or as sometimes described, an assault with acts of indecency."<ref>
{{CanLIIRP|Swietlinski|1txc1|1980 CanLII 53 (SCC)|[1980] 2 SCR 956 (SCC)}}{{perSCC-H|McIntyre J}}<br>
R v Leary, per Martin JA, at p. 57. 
</ref>
It has also been described as "the application of force in an indecent manner upon an unwilling partner or person under 14".<ref>
{{CanLIIRP|English|1nplt|1993 CanLII 3373 (NL CA)|84 CCC (3d) 511}}{{perNLCA|Goodridge CJ}} at p .346
</ref>

The only mental element for indecent assault is one of general intent.<Ref>
{{supra1|Swietlinski}}<Br>
Leary ("The only intent required for indecent assault is the general or basic intent to do the act which, in the circumstances in which it was done, in fact, constitutes an indecent assault.")
</ref>

; Definition of Indecent 
What constitutes "indecent" is a question of fact and is determined on a case-by-case basis.<ref>
{{ibid1|Swietlinski}}
</ref>
Determination "will depend upon an objective view of the facts and circumstances in relation to the actual assault, and not upon the mental state of the accused"<ref> 
{{ibid1|Swietlinski}}{{atL|1txc1|17}}<br>
R v Leeson (1968), 52 Cr. App. 185 at p. 187
</ref>

; Buggery
The meaning of buggery has the same definition as "anal intercourse".<ref>
R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752, paras. 99-100, Pepall J.A. concurring
</ref>

; Compared to Gross Indecency
By contrast, "gross indecency" may involve acts that are indecent assaults or those that are consensual.<ref>
{{ibid1|English}} at p. 346
</ref>

; Compared to Sexual Assault
The two offence overlap in many ways and will capture the same conduct in certain case, both relates to acts that violate the sexual integrity of the victim. The distinguishing element is that for sexual assault, there is an objective requirement of a sexual purpose. <Ref>
R v Trachy, 2019 ONCA 622, 147 O.R. (3d) 250, Benotto J.A at para 72
</ref>

; Consent
Section 150 of the Code removes consent as a defence for a complainant under the age of 14:
{{quotation1|
140.  Where an accused is charged with an offence under section 146, 149 or 156 [indecent assault, male] in respect of a person under the age of fourteen years, the fact that the person consented to the commission of the offence is not a defence to the charge.

{{Annotation}}
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}}

{{reflist|2}}


==Ancillary Sentencing Orders==
{{seealso|Ancillary Orders}}
	
; Offence-specific Orders
{{AOrderHeader}}
| [[DNA Orders]]  ||s. 266 {{DescrSec|266}} ||
** {{SecondDNA(CtoE)|s. 266}}
|-
| [[Weapons Prohibition Orders]]   || s. 266 {{DescrSec|266}} ||
** {{Section110|s. 266}}
|-
| [[Delayed_Parole_Eligibility|Delayed Parole Order]] ||s. 266 {{DescrSec|266}}||
* {{ParoleDelayEligible|1|s. 266}}
{{AOrderEnd}}

; General Sentencing Orders
{{GeneralSentencingOrders}}

; General Forfeiture Orders
{{GeneralForfeitureOrders}}

==History==

===1970===
Criminal Code, R.S.C. 1970, c. C-34, s. 156.

{{quotation1|
; Indecent assault on male
156. Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years and to be whipped. 1953-54, c. 51, s. 148.
An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, 

S.C. 1980-81-82-83, c. 125, s. 9.
|
}}
===1906===
Criminal Code, R.S.C. 1906, c. 146, s. 292.

{{quotation1|
;Offence. Penalty.
; Indecent assault on female. &mdash;  Consent procured by fraud.  &mdash; Assaults on females.
292. Every one is guilty of an indictable offence and liable to two years’ imprisonment, and to be whipped, who,—
:(a) indecently assaults any female; or,
:(b) does anything to any female by her consent which but for such consent would be an indecent assault, if such consent is obtained by false and fraudulent representations as to the nature and quality of the act. 

55-56 V., c. 29, s. 259.
|}}

===1909===
An Act to amend the Criminal Code, S.C. 1909, c. 9, s. 2.

{{quotation1|
[Offence. Penalty.]
292. Every one is guilty of an indictable offence and liable to two years’ imprisonment, and to be whipped, who,—
    [Indecent assault on female.]
    (a) indecently assaults any female; or,
    [Consent procured by fraud.]
    (b) does anything to any female by her consent which but for such consent would be an indecent assault, if such consent is obtained by false and fraudulent representations as to the nature and quality of the act.
    [Assaults on females.]
    (c) assaults and beats his wife or any other female and thereby occasions her actual bodily harm. [55-56 V., c. 29, s. 259.]
|}}

===1927===
Criminal Code, R.S.C. 1927, c. 36, s. 292.
{{quotation1|
[Offence. Penalty.]
292. Every one is guilty of an indictable offence and liable to two years' imprisonment, and to be whipped, who
    [Indecent assault on female.]
    (a) indecently assaults any female; or
    [Consent procured by fraud.]
    (b) does anything to any female by her consent which but for such consent would be an indecent assault, if such consent is obtained by false and fraudulent representations as to the nature and quality of the act; or
    [Assaults on females.]
    (c) assaults and beats his wife or any other female and thereby occasions her actual bodily harm. R.S., c. 146, s. 292; 1909, c. 9, s. 2.
|}}

===1953===
Criminal Code, S.C. 1953-54, c. 51, s. 141.

{{quotation1|
[Indecent assault on female.]
141. (1) Every one who indecently assaults a female person is guilty of an indictable offence and is liable to imprisonment for five years and to be whipped.
    [Consent by false representations.]
    (2) An accused who is charged with an offence under subsection (1) may be convicted if the evidence establishes that the accused did anything to the female person with her consent that, but for her consent, would have been an indecent assault, if her consent was obtained by false and fraudulent representations as to the nature and quality of the act.
Criminal Code, R.S.C. 1970, c. C-34, s. 149.
|}}

{{quotation1|
[Indecent assault on female]
149. (1) Every one who indecently assaults a female person is guilty of an indictable offence and is liable to imprisonment for five years and to be whipped.
    [Consent by false representations]
    (2) An accused who is charged with an offence under subsection (1) may be convicted if the evidence establishes that the accused did anything to the female person with her consent that, but for her consent, would have been an indecent assault, if her consent was obtained by false and fraudulent representations as to the nature and quality of the act. 1953-54, c. 51, s. 141.
An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980-81-82-83, c. 125, s. 8.
|}}

The Criminal Code, 1892, S.C. 1892, c. 29, s. 260.

{{quotation1|
[Indecent assaults on males.]
260. Every one is guilty of an indictable offence and liable to seven years’ imprisonment and to be whipped who assaults any person with attempt to commit sodomy, or who, being a male, indecently assaults any other male person. R.S.C., c. 157, s. 2.
|}}
===1892===
An Act to amend the Criminal Code, 1892, S.C. 1893, c. 32, s. 1.

{{quotation1|
[Indecent assaults on males.]
260. Every one is guilty of an indictable offence and liable to ten years’ imprisonment and to be whipped who assaults any person with intent to commit sodomy, or who, being a male, indecently assaults any other male person. R.S.C., c. 157, s. 2.
|}}

===1906===
Criminal Code, R.S.C. 1906, c. 146, s. 293.
{{quotation1|
[Indecent assault on males.]
293. Every one is guilty of an indictable offence and liable to ten years’ imprisonment, and to be whipped, who assaults any person with intent to commit sodomy or who, being a male, indecently assaults any other male person. 55-56 V., c. 29, s. 260; 56 V., c. 32, s. 1.
|}}

===1927===
Criminal Code, R.S.C. 1927, c. 36, s. 293.
{{quotation1|
[Indecent assault on males]
293. Every one is guilty of an indictable offence and liable to ten years' imprisonment, and to be whipped, who assaults any person with intent to commit sodomy or who, being a male, indecently assaults any other male person. R.S., c. 146, s. 293.
|}}

===1953===
Criminal Code, S.C. 1953-54, c. 51, s. 148.

{{quotation1|
; Indecent assault on male.]
148. Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years and to be whipped.
|
}}

===1892===
The Criminal Code, 1892, S.C. 1892, c. 29, s. 259.
{{quotation1|
;Indecent assaults on females.
259. Every one is guilty of an indictable offence and liable to two years’ imprisonment, and to be whipped, who—
:(a) indecently assaults any female, or
:(b) does anything to any female by her consent, which but for such consent would be an indecent assault, such consent being obtained by false and fraudulent representations as to the nature and quality of the act. 

53 V., c. 37, s. 12.
|}}

==See Also==
* [[Indecent Assault (Sentencing Cases)]]
* [[History of Gross Indecency (Repealed Offence)]]