SEXUAL OFFENCES AGAINST CHILDREN AND VULNERABLE PERSONs
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Table of Contents
Introduction
This section will give a brief description or history of the offences included in “sexual offences” against children or other vulnerable persons.
In order to be convicted of any sexual charge, there are two kinds of evidence that must be presented in court: evidence of the actus reus (guilty act) and evidence of the mens rea (guilty mind) — we will discuss both of these in the coming sections.
We will also be going over specific defences to each charge, as well as the available sentencing ranges on each.
Quick Point: General vs Specific Intent in Criminal Law
In Canada, criminal law recognizes a distinction between offences of specific and general intent.
General intent requires intent as it “relates solely to the performance of the act in question”.
Specific intent involves the actus reus (the guilty act) “coupled with an intent or purpose going beyond the mere performance of the questioned act”.1
An example of this distinction can be seen in the charge of murder versus manslaughter. In the case of murder, there must be intention to cause death, whereas manslaughter does not require the intention.
This will become important further down!
Sexual Interference
The age of consent was raised in 2008 from 14 to 16 years of age. The Criminal Code section now reads as follows:
Sexual interference
151 Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.
Actus Reus (Guilty Act)
There are several elements to this crime:
(1) the complainant was under the age of 16 at the time of the events alleged and the accused knew the victim was under 16 or the accused did not take “all reasonable steps” to ascertain the age of the complainant;
(2) the accused touched the complainant anywhere;
(3) the accused used their body or an object; and,
(4) that the touching was for a sexual purpose.
Over the years, the courts have expanded the actions that constitute a “touch”—this goes beyond the case of intercourse and can include a variety of actions, including any incident where an accused intended to interact with a child in a sexual manner and, with that intent, made contact with the body of the child.2
Given the age of the complainant is a relevant element, the Crown must establish this element. Usually this is a minimal point, which would include having the complainant testify as to his or her date of birth. Where the issue is in question, other witnesses may be called depending on the circumstances.
There is no defence to mistake of age unless the accused takes “all reasonable steps” to ascertain the age of the complainant.
The age of the accused may be relevant for the exceptions found in section 150.1 of the Criminal Code:
Note—it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge. That means that a person under the age of 16 years cannot consent.
There are several exceptions under this section:
1. Where the complainant is aged 12 or 13
When an accused is charged with an offence under this section where the complainant is 12 or more but under 14, it is a defence that the complainant consented if the accused
(a) is less than two years older than the complainant; and
(b) is not in a position of trust or authority or in a relationship of dependency and is not in a relationship with the complainant that is exploitative.
2. Where the complainant is aged 14 or 15
If an accused is charged with an offence under this section and the complainant is 14 or older but under 16, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused
(a) is less than five years older than the complainant; and
(b) is not in a position of trust or authority, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative.
3. Where the accused is aged 12 or 13
No person aged twelve or thirteen shall be tried for an offence under this section unless the person is in a position of trust or authority towards the complainant, is a person with whom the complainant is in a relationship of dependency or is in a relationship with the complainant that is exploitative of the complainant.
Note—because these are exceptions to the requirements of the charge, section 794 of the Criminal Code states that the defence needs to bring that evidence. In practice, usually this defence will be raised after the Crown has established the case through testimony of the Crown’s witnesses.
Mens Rea (Guilty Mind)
The required level of intent for this section is a different standard than the above offences. The intent to touch is for a sexual purpose. Therefore, courts have held that this is a crime of specific intent. The phrase “for a sexual purpose” has been discussed by courts repeatedly. The result of those decisions is that the touch must be for the sexual gratification of the accused or to violate the sexual integrity of the complainant.
Defences
Given the offence requires “specific intent” for a “sexual purpose”, intoxication is a defence. Claiming a mistake of age is not a defence, unless the accused can establish that all “reasonable steps” were taken to ascertain the age of the complainant. Consent is not a defence to sexual interference subject to the exceptions listed above, listed above, and in section 150.1(1) of the Code.
Sentencing
This offence is a hybrid offence—therefore, the Crown can elect to proceed by summary conviction or by indictment.
If the Crown proceeds by indictment, the available sentence is between 1 and 14 years imprisonment, but if the Crown elects by summary conviction, the available sentence is a minimum sentence of 90 days in custody and a maximum of two years less a day. Section 151(6) has been specifically held not to violate the accused’s Charter rights. This means that a non-custodial sentence is not an available sentence, no matter how the Crown proceeds.
Invitation to Sexual Touching
This offence relies on the elements defined in “Sexual Interference”—there must be a sexual purpose to the invitation and the complainant must be younger than 16 years old. The difference is that this offence refers to communicating for a sexual purpose rather than physical touching.
Actus Reus (Guilty Act)
In addition to the elements laid out in Sexual Interference, the accused must also “invite, counsel or incite” for a sexual purpose. There is no requirement that the invitation be acted upon—the act is complete once the invitation is made. Importantly, it is irrelevant whether the complainant accepts or declines the invitation.
“Counsel” is defined in section 22(3) of the Criminal Code:
Definition of “counsel”
22(3) For the purposes of this Act, “counsel” includes procure, solicit or incite.
“Incite” has been defined in law as a “suggestion” or “urge” that the complainant engage in sexual conduct. It requires a positive act by the accused to cause the complainant to engage in sexual touching.
“Invite” can include both direct and indirect invitations. There have been convictions on implied invitations.
The way this crime can be committed goes beyond oral invitation—it can include gestures as well.
Mens Rea (Guilty Mind)
This is a crime of specific intent. The Crown must prove either that 1) the accused intended that the child receive the communication as an invitation to a sexual touch, or 2) that the accused was reckless as to the possibility of that result. Note – a clear joke will not be reckless enough to support a finding of the requisite mens rea.
Defences
All defences outlined for sexual interference (above) apply.
Sentencing
The sentencing lengths are outlined in the sexual interference section (above).
Sexual Exploitation
This offence is a variation of the offences of sexual interference and invitation to sexual touching. The basic wording of the offence is the same, except for the added element of the accused being in a position of authority over the complainant, who must be at least 16 and younger than 18 years of age (i.e., a “young person”).
The relevant Criminal Code section is section 153:
Sexual exploitation
153(1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who
(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or
(b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person.
Actus Reus
In addition to the elements required in sexual interference, the Crown must prove the following:
(1) that the accused was in a position of authority or trust over the young person and
(2) that there was a dependent or exploitive relationship between the two.
Notably, the Crown does not need to prove that the accused used the position of trust or authority in order to gain the sexual touching. It is enough that the position of trust was present at the time.
Trust has been defined as a value that the young person feels toward the accused. It is a question of fact and is determined through the evidence shown at trial. A position of trust can occur in normal situations, such as a young person and a step-parent; adoptive parent; foster parent; legal guardian, etc.
There are less-typical cases where, for example, a person watching a child at a sleepover is enough to expect that the accused should treat the child as a parent would.
The question of whether a relationship of dependence exists between the young person and the accused is determined contextually. Ultimately, the purpose of the section is to protect a young person who is otherwise vulnerable to be taken advantage of, so factors include
- The age of the young person;
- The age difference between the accused and the young person;
- The degree of control, influence, or persuasiveness exercised by the accused over the young person; and
- The evolution of the relationship.
Mens Rea
This is a crime of “specific intent”—therefore, the accused must have the necessary intent for each element of the actus reus (listed above).
Therefore, the accused must have knowingly communicated for a sexual purpose and intended—or else was reckless—that the communication be understood as an invitation and the “touch” must be for a sexual purpose, not that the touch actually gave the accused sexual gratification.
Defences
Honest but mistaken belief of the nature of the relationship is not a defence. Since this is an offence of specific intent, intoxication is a defence.
Where an accused is charged with sexual exploitation in respect of a complainant under 16 years of age, it is not a defence that the complainant consented to the activity, nor is it a defence that the accused believed that the complainant was 18 years of age or more, unless the accused took “all reasonable steps” to know the complainant’s age.
Sentencing
This charge is a hybrid offence. Where the Crown proceeds by indictment, the accused will be liable to imprisonment for 1 to 14 years. Where the Crown proceeds by summary conviction, the accused will be liable to a term of 90 days to 2 years less a day.
Sexual Exploitation of a Person with a Disability
A crime of sexual exploitation of a person with a disability exists under a section 153.1(1). Disability is broadly interpreted by the courts.
Actus Reus (Guilty Act)
Similar to the offence of Sexual Exploitation charge, this offence is a more narrow interpretation of that section. The following must be proven by the Crown:
- The accused is in a “position of trust or authority towards” the complainant or there is a relationship of dependency;
- The complainant has a mental or physical disability;
- The conduct is “for a sexual purpose”;
- The accused “counsels or incites” the complainant to touch the accused’s own body, the body of the person who so counsels or incites, or the body of any other person; and
- The complainant did not consent to the touching.
Mens Rea (Guilty Mind)
This is a crime of “specific intent”—therefore, the accused must have the necessary intent for each element of the actus reus (listed above).
Defences
The Code itself sets out several limitations to the defence of consent—no consent can be obtained if the consent is given by another person other than the complainant; the complainant is unconscious; the complainant is incapable of consenting; the accused counsels the complainant by abusing a position of trust or power of authority; complainant expresses a lack of agreement to engage in the sexual activity. Further, it is not a defence if the accused believed there was consent if the accused’s belief arose from intoxication, recklessness, or wilful blindness.
Sentencing
The sentence for this crime is less than that for the crime of exploitation of a young person under the previous section—there is no mandatory minimums and a maximum of five years in prison if the charge is by indictment. If the Crown proceeds by summary conviction, there is no minimum sentence.
It is not clear why the sentence for this offence, with this category of victim, is much lower than the similar charge of sexual exploitation where a young person is involved. However, the Crown has the option of proceeding with either charge where the complainant is both a young person and has a disability.
References
1: R v Bernard, 1988 CanLII 22 (SCC), [1988] 2 SCR 833, at para 61
2: R v Sears (1990), 66 Man R (2d) 47, 58 CCC (3d) 62 at paras 6, 9 (CA).
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