Transcript Document

Child Sexual Abuse
Joint Investigations – March 4, 2009
Police/Social Workers



7/20/2015
To be covered:
Legislation
Evidentiary Topics
N.B. Because of space limitations, the
wording of sections of the legislation
herein, may have been altered.
Therefore, please refer to the actual
legislation for the specific wording of
each section.
David P. O’Brien, Q.C.
Senior Crown Attorney
Prince Edward Island
1
Child Sexual Abuse
Joint Investigations – March 4, 2009
Police/Social Workers - Legislation
Criminal Code of Canada
 Canada Evidence Act
 Victims of Family Violence Act
 Child Protection Act
 Age of Majority Act
Youth Criminal Justice Act
Common Law
Charter of Rights and Freedoms

7/20/2015
2
Access to Slides

Copies of these slides can be found at:

http://www.makingadifferencecanada.ca
/
User Name: mad Password: members

The "Making a Difference Canada" project is a joint
effort with Making a Difference USA, supported with
generous funding by the Donner Canadian
Foundation in Canada, and by the William H.
Donner Foundation in the USA.
The purpose of the "Making a Difference" project is
to challenge the justice system in both the U.S. and
Canada to more effectively prosecute sexual
3
offenders.

7/20/2015
Caveat

7/20/2015
If opinions are expressed today,
they are personal opinions and
probably do not represent the
views of the Department
4
Role of the Crown

1955 Rand J. in Boucher v. The Queen

“It cannot be over-emphasized that the purpose
of a
criminal prosecution is not to obtain a
conviction, it is to lay before a jury what the Crown
considers to be credible evidence relevant to what is
Counsel have a duty to
see that all available legal proof of the
facts is presented: it should be done firmly and
alleged to be a crime.
pressed to its legitimate strength but it must also be done
7/20/2015
5
fairly.
R. v. Boucher Con’t.

The role of the prosecutor
excludes any notion of
winning or losing; his function
is a matter of public duty than which
in civil life there can be none
charged with greater personal
responsibility. It is to be efficiently
performed with an ingrained sense of
dignity, the seriousness and the
justness of judicial proceedings.
7/20/2015
6
CCJS Family Violence In Canada A Statistical profile
Data from 122 police services representing 71% of the Canadian population in 2005
7/20/2015
7
Provincial Child Sexual Abuse Committee
7/20/2015
8
What is A sexual Assault?


7/20/2015
The offence of sexual assault is set
out in terms of penalty in the
Criminal Code but there is no
definition of what constitutes a
sexual assault.
R. v. Chase,[1987] 2 S.C.R. 293 –
one of the first cases that
attempted to give definition to the
term
9
What Sexual Assault is – Objective Test

11
Applying these principles and the
authorities cited, I would make the following
observations. Sexual assault is an
assault within any one of the definitions of
that concept in s. 244(1) of the Criminal Code
which is committed in
circumstances of a sexual nature,
such that the sexual integrity of the
victim is violated. The test to be applied in
determining whether the impugned conduct has
the requisite sexual nature is an objective one:
"Viewed in the light of all the circumstances, is
the sexual or carnal context of the assault
visible to a reasonable observer"
7/20/2015
10
Factors to Look For

…The part of the body touched,
the nature of the contact,

the situation in which it occurred,



the words and gestures accompanying the
act,
and all other circumstances surrounding
the conduct, including threats which may
or may not be accompanied by force, will
be relevant
7/20/2015
11
Sexual Motivation only a Factor

The intent or purpose of the person
committing the act, to the extent
that this may appear from the
evidence, may also be a factor in
considering whether the conduct is sexual. If the
motive of the accused is sexual gratification, to
the extent that this may appear from the
evidence, it may be a factor in determining
whether the conduct is sexual. It must be
emphasized, however, that the existence
of such a motive is simply one of many
factors to be considered, the importance
of which will vary depending on the
circumstances.
7/20/2015
12
R. v. V.(K.B.)K.B., [1993] 2 S.C.R. 857

The accused was charged with sexually
assaulting his three-year-old son. In a
statement to the police, he explained that
he grabbed his son's genitals in order to
deter him from grabbing the genital region
of adults and to show him how much it
hurts. The accused was convicted. The
trial judge concluded that the absence of
evidence of sexual gratification on the
part of the accused was irrelevant in this
case, given the other indicia which lead to
the conclusion that the assault was in fact
7/20/2015
13
a sexual assault.
Violation of Sexual Integrity

Among other things, the appellant, on three
occasions, violently clutched the little boy's
scrotum and there was evidence of bruising
and severe pain. In my view, it was
clearly open to the trial judge to
conclude from all the
circumstances that the assault
was one of a sexual nature and
that the assault was such that
7/20/2015
the sexual integrity of the
appellant's son was
14
violated.
At What Age is a Child a Child?
Age of Majority Act:
s.1. Every person attains the age
of majority and ceases to be a
minor on attaining the age of
eighteen years. R.S.P.E.I. 1974, Cap. A-3, s.1.
7/20/2015
15
Proving AGE of Child - Criminal Code




658(1) In any proceedings to which this Act applies, the
testimony of a person as to the date of his or her birth is
admissible as evidence of that date.
658(2) In any proceedings to which this Act applies, the
testimony of a parent as to the age of a person of whom
he or she is a parent is admissible as evidence of the age
of that person.
658(3) In any proceedings to which this Act applies, (a) a
birth or baptismal certificate or a copy of such a
certificate purporting to be certified under the hand of the
person in whose custody the certificate is held is
evidence of the age of that person; and
(b) an entry or record of an incorporated society or its
officers who have had the control or care of a child or
young person at or about the time the child or young
person was brought to Canada is evidence of the age of
the child or young person if the entry or record was made
7/20/2015
before the time when the offence is alleged to have been 16
Proving Age If All Else Fails!

658(4) In the absence of any certificate, copy, entry or
record mentioned in subsection (3), or in corroboration of
any such certificate, copy, entry or record, a jury, judge,
justice or provincial court judge, as the case may be, may
receive and act on any other information relating to age
that they consider reliable.

658(5) In the absence of other evidence, or by way of
corroboration of other evidence, a jury, judge, justice or
provincial court judge, as the case may be, may infer the
age of a child or young person from his or her
appearance.
7/20/2015
17
Child under Child Protection Act
(h) “child” means
(1) a person under the age of 16 years;
or
(ii)
7/20/2015
a person between the ages
of 16 and 18 years where the
person, due to
developmental, mental or
physical incapacity, is or
appears to be unable to
protect himself or herself;
18
Child Protection Act – Duty to Report
22. (1) Notwithstanding any other Act, every
person who has knowledge, or has
reasonable grounds to suspect that a child
is in need of protection shall
a)without delay, report or cause to be
reported the circumstances to the Director,
or to a peace officer who shall report the
information to the Director; and
(b) provide to the Director such additional information as is
known or available to the person.
7/20/2015
19
Child is in Need of Protection When

7/20/2015
3. A child is in need of protection where
(c) the child has been sexually abused by
a parent or by another person where the
parent knew or ought to have known of
the possibility of sexual abuse of the child
and the parent failed to protect the child;
(d) the child has been harmed as a result
of being sexually exploited for the
purposes of prostitution and the parent
has failed or been unable to protect the
child;
20
Police Duty to Report - Form

7/20/2015
Police have a Form
developed through the
VFVA – Steering
Committee – Instructed to
send it to Child & Family
Services in every case of
Family Violence when
children are part of the
relationship.
21
Victims of Family Violence Act
Definition of Child

s.1(a) “child” means a child who
ordinarily or periodically resides with the
victim,
is under the age of eighteen years
and
unmarried,
whether or not the child is a child of the victim
and the respondent or of either of them,
and includes a foster child or a child in actual
care and custody of the victim;
7/20/2015
22
VFVA - Child may also be a Victim


(q) “victim” means
(i) a person who has resided with or
who is residing with the respondent
in a family relationship,
or

7/20/2015
(ii) a person who, with the respondent, is a
parent of one or more children, regardless of
marital status or whether the victim and
respondent have lived together at any time,
who has been subjected to family
23
Emergency Protection Order
Must be a finding that:
7/20/2015

Family violence has occurred

The seriousness or urgency of the
circumstances merits the making
of the Order
24
Sexual Violence Included in VFVA
2. (1) “Family violence” in relation to a person,
is violence against that person by any other
person with whom that person is, or has
been, in a family relationship.
(2) In subsection (1), violence includes
(a) any assault of the victim;
(d) forced confinement of the victim;
(e) actions or threats of sexual
abuse, physical abuse or emotional
7/20/2015
abuse of the victim;
25
Conditions in an EPO – max 90 days
unless extended by a judge
7/20/2015

(d) a provision restraining the respondent from
directly or indirectly communicating with the
victim or other specified person;

(e) a provision requiring the respondent to stay
away from any place identified specifically or
generally in the order;

(f) a provision awarding temporary care and
custody or day-to-day care of a child to the
victim or some other person;
26
Canada Evidence Act
Who can Testify
and
How
7/20/2015
27
Canada Evidence Act
S.4(1) The husband or wife of
an accused is a competent &
compellable witness for the
Crown when a child is the
victim of sexual offences.
(spousal privilege does not
apply)

7/20/2015
28
Canada Evidence Act – Evidence of
Person with a Physical Disability


7/20/2015
6(1) If a witness has difficulty
communicating by reason of a
physical disability, the court may
order that the witness be permitted
to give evidence by any means
that enables the evidence to be
intelligible.
6(3)Court can conduct inquiry to
determine if means to be used is
necessary & reliable.
29
Canada Evidence Act – Evidence of
Person with a Mental Disability

7/20/2015
6(2) If a witness with a mental
disability is determined under
section 16 to have the capacity
to give evidence and has
difficulty communicating by
reason of a disability, the court
may order that the witness be
permitted to give evidence by
any means that enables the
evidence to be intelligible. (s.6(3)
applies)
30
Canada Evidence Act – Capacity to
Testify - 14 Years of Age or Older
If witness is 14 years or older and their
mental capacity is challenged (onus on
person challenging to satisfy court
there is issue of capacity to testify
under oath or affirmation)
Court shall conduct an inquiry to
determine:

7/20/2015

a) if witness understands oath/affirmation

b) whether witness is able to
communicate the evidence
31
Result of Inquiry 16(1)



7/20/2015
S.!6(3) If person understands nature of
oath/affirmation and able to
communicate the evidence then
testifies under oath/affirmation.
If doesn’t understand but able to
communicate – testify on promise to
tell the truth
If doesn’t understand and can’t
communicate can’t testify.
32
Canada Evidence Act – Capacity to
Testify – Under 14 Years of Age –16.1
7/20/2015

16.1(1) presumed to have capacity to testify

16.1(2) shall not take an oath or affirmation

16.1(3) SHALL BE RECEIVED IF ABLE TO
UNDERSTAND AND RESPOND TO QUESTIONS

16.1(3) required to promise to tell the truth

16.1(8) Evidence shall have the same effect as if
33
taken under oath
CEA –16(1) Challenge to Mental
Capacity- if witness over14

16(1)(5) if court is satisfied there is issue of capacity to
understand & respond to questions it shall conduct an inquiry
but 16.1(7) - can’t ask questions concerning the nature of the
promise to tell the truth.

Court must determine
1. Whether the person understands the nature of
the oath/affirmation


2. Whether the person is able to communicate
the evidence
7/20/2015
34
YCJA Evidence of Child/YP


s.151 The evidence of a child or a young person
may be taken in proceedings under this Act only
after the youth justice court judge or the justice in the
proceedings has
(a) if the witness is a child(under 12), instructed the
child as to the duty to speak the truth and the
consequences of failing to do so; and
(b) if the witness is a young person (12-17) and the
judge or justice considers it necessary, instructed
the young person as to the duty to speak the
truth and the consequences of failing to do so. 35
7/20/2015
The Criminal Code
7/20/2015

My Best Advice Read it!!!!

Break down the provision to see
what you need to prove or what
evidence you need to gather.
36
Criminal Code Provisions: Current Not Historic
Criminal Code 101

Police investigate and gather
evidence – Crown can’t direct
their efforts
R. v. Regan,[2002] 1 SCR297
while the police tasks of
investigation and charge-laying
must remain distinct and
independent from the Crown role
of prosecution, I do not think it is
the role of this Court to make a
pronouncement on the details of
the practice of how that
separation must be maintained.
…
7/20/2015
37
Police Lay the Information
A prosecution is commenced by laying
an information.
Police lay the information – Crown
cannot interfere – Crown Attorneys do
not have the authority to lay an
information, (other than as a private
citizen), or to direct the police to lay
an information.

7/20/2015
A Police Officer must swear on oath that
he/she has reasonable grounds to
believe an offence has occurred.
38
Crown Consultation

7/20/2015
The policy in our province is that
the police shall consult with the
Crown prior to laying an
information involving a child sexual
assault.
39
Limitation Periods
Criminal Code
 Indictable no limitation period but need
to charge based on the legislative
provision as it existed at the time
Summary conviction 6 months
but
s. 786(2) (2) No proceedings shall be
instituted more than six months after the
time when the subject-matter of the
proceedings arose, unless the

prosecutor and the defendant
so agree.
7/20/2015
40
Charter of Rights and Freedoms
7/20/2015

If lengthy delay affects the fairness of the
trial arguments for a stay of proceedings
can be made pursuant to s.7

or more likely, s.11(b) the right to be tried
within a reasonable time R.v. Askov,
[1990] 2 S.C.R. 1199 systemic or
institutional delays - Ontario
41
Crown Involvement

If a charge is laid, the Crown determines
if the charge meets their test:
1.) There is a reasonable prospect of a
conviction
and
2.) The prosecution is in the public
interest

7/20/2015
If police have not released the
accused - show cause hearing?
42
Releasing the Accused

To Release
-orTo show Cause
That is the Question!
Hindsight is 20/20
7/20/2015
43
Release versus Custody


1.)Release on Undertaking w
conditions – Peace officer or Justice of
the Peace ( JP -REVERSE ONUS and
broader conditions can be imposed)
2.)Hold in Custody – 3 grounds
A.) Ensure attendance
s.515(10)
B.)Protection or safety of the public
includes victim & witness substantial
likelihood commit an offence /interfere with the
administration of justice if released
7/20/2015
C.)Detention is necessary to maintain
confidence in the justice system
44
If Remand- Seek no contact Order

7/20/2015
515(12) A justice who orders that an
accused be detained in custody under
this section may include in the order a
direction that the accused abstain
from communicating, directly or
indirectly, with any victim, witness or
other person identified in the order,
except in accordance with such
conditions specified in the order as the
justice considers necessary.
45
Crown Test Not Met
7/20/2015

Withdraw (judge can make an
inquiry

Stay (no inquiry must return to
court in 6 summary conviction or 12 months
indictable), or

seek an adjournment for further
investigation
46
Consider s.810 Recognizance – Civil
Standard of Proof
If police believe on reasonable grounds that
another person will cause personal injury to a
person or the person’s spouse or CL partner or
child or will damage their property can seek an
810 Recognizance. – Not a criminal charge - No
finding of guilt I.e. no record.
N.B.If accused is found not guilty, i.e., not
satisfied of guilt beyond a reasonable doubt, the
court may be able to bind the accused over to
keep the peace pursuant to its common law
powers - PREVENTATIVE
7/20/2015
47
Consider s.810.1

7/20/2015
810.1(1) Any person who fears on reasonable
grounds that another person will commit
an offence under s. 151, 152, 155 or 159, ss.
160(2) or (3), s. 163.1, 170, 171 or 172.1, ss.
173(2) or s. 271, 272 or 273, in respect of
one or more persons who are under the
age of 16 years, may lay an information
before a provincial court judge, whether or
not the person or persons in respect of whom
it is feared that the offence will be committed
are named.
48
Alternative Measures



7/20/2015
AG Policy – Spousal and Sexual Abuse
cases only to be referred in exceptional
circumstances.
Prior to referral – Victim Services should
be contacted, Victim’s wishes and needs
to be considered, charges should be laid
If referred, case is sent to Probation
Services, a contract is entered into, if no
substantial completion matter can be
brought to or back to court
49
Summary v. Indictable Offence

Crown determines if proceeding by
summary conviction or by indictment

Accused determines mode of trial if
indictable 3 options:
Provincial Court Judge,
Supreme Court J with a jury or
Supreme Court J without a jury




7/20/2015
If Supreme Court - Crown or Defence
can request a Preliminary Inquiry
50
Preliminary Inquiry


7/20/2015
Proceeding to determines if there is
sufficient evidence to put the accused on
trial
Accused doesn’t enter a plea.

s.517(1) Court can Order non publication
of evidence taken for a specified time
period.

If there is sufficient evidence, the
accused is committed to stand trial and
is arraigned i.e. asked how he pleas –
guilty or not guilty.
51
Following Finding of Guilt – Trial or Plea


7/20/2015
Pre-sentence report s. 721– may
be ordered - prepared by Probation
Services – background on accused
Victim Impact Statement – s.722
prepared with help from Victim
Services and on their Form –
describes the harm done to or loss
suffered by the victim. – Only
distributed on finding of guilt.52
Probation Orders
7/20/2015

Maximum term is three years.

Cannot be imposed if the sentence
is to custody for a term exceeding
two years.
53
Orders to be Sought if acc is Found Guilty
If found guilty the following orders
should be applied for if applicable:
DNA Order
 SOIRA Order
 161(3) Order –if V is under 16
 109/110 Firearm Order

N. B. As of December 1, 2007 if
the offence falls within s.742.1 as
serious personal injury offence,
conditional sentence not available.
7/20/2015
54
s. 161(3) Order - Conditions


Court may make an order prohibiting the accused from:
161(1)(a) attending a public park or public swimming area
where persons under the age of 16 years are present or
can reasonably be expected to be present, or a daycare
centre, schoolground, playground or community centre;

(b) seeking, obtaining or continuing any employment,
whether or not the employment is remunerated, or
becoming or being a volunteer in a capacity, that involves
being in a position of trust or authority towards persons
under the age of 16 years; or

(c) using a computer system within the meaning of
subsection 342.1(2) for the purpose of communicating
7/20/2015
with a person under the age of 16 years.
55
Offences to Which s.161 applies



(1.1) The offences for the purpose of subsection (1) are (a) an
offence under section 151, 152, 155 or 159, subsection
160(2) or (3), section 163.1, 170, 171 or 172.1, subsection
173(2) or section 271, 272, 273 or 281;
(b) an offence under section 144 (rape), 145 (attempt to
commit rape), 149 (indecent assault on female), 156
(indecent assault on male) or 245 (common assault) or
subsection 246(1) (assault with intent) of the Criminal Code,
chapter C-34 of the Revised Statutes of Canada, 1970, as it
read immediately before January 4, 1983; or
(c) an offence under subsection 146(1) (sexual intercourse
with a female under 14) or section 153 (sexual intercourse
with step-daughter), 155 (buggery or bestiality), 157 (gross
indecency), 166 (parent or guardian procuring defilement) or
167 (householder permitting defilement) of the Criminal Code,
chapter C-34 of the Revised Statutes of Canada, 1970, as it
7/20/2015
56
read immediately before January 1, 1988.
Consent
Be Persistent
7/20/2015
57
Consent
R. v. Ewanchuk, [1999] 1 S.C.R. 330

The trier of fact may only come to one
of two conclusions: the complainant
either consented or did not. There is no
third option. If the trier of fact accepts
the complainant's testimony that she did
not consent, no matter how strongly her
conduct may contradict that claim, the
absence of consent is established and the
third component of the actus reus of
sexual assault is proven. No defence of
implied consent to sexual assault exists
in Canadian law.
7/20/2015
58
Consent Under Code – Hide and Seek
s. 265 (1 ) definition of assault
(2) This section applies to all forms of assault,
including sexual assault, sexual assault
with a weapon, threats to a third party or
causing bodily harm and aggravated sexual
assault.
7/20/2015
59
Consent re: assaults
265(3) For the purposes of this section, no
consent is obtained where the complainant
submits or does not resist by reason of
 (a) the application of force to the complainant
or to a person other than the complainant;
 (b) threats or fear of the application of force to
the complainant or to a person other than the
complainant;
 (c) fraud; (or
7/20/2015
60
 (d) the exercise of authority.

HIV Transmission

Prosecution based on no consent
because of fraud i.e. consent must be to
engage in unprotected sexual
intercourse with a person who has the
virus. Therefore non - disclosure is the
basis of the offence

R. v. Cuerrier,[1998] 2 S.C.R. 371
R. v. Williams,[2003] 2 S.C.R. 134

7/20/2015
61
Next Consent Provisions –
Meaning of Consent
273.1 (1) Subject to subsection
(2) and subsection 265(3),
"consent" means, for the
purposes of sections 271, 272
and 273,
the voluntary agreement of the
complainant to engage in the
sexual activity in question.
7/20/2015
62
s. 273.1(2): No consent is obtained when




273.1(2) No consent is obtained, for the purposes of
sections 271, 272 and 273, where
(a) the agreement is expressed by the words or
conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to
the activity; - Date Rape Drugs see Mad Website
(c) the accused induces the complainant to engage in
the activity by abusing a position of trust, power or
authority;
7/20/2015
63
Con’t…
273.1 (2) Continued


7/20/2015
(d) the complainant expresses,
by words or conduct, a lack of
agreement to engage in the
activity; or
(e) the complainant, having
consented to engage in sexual
activity, expresses, by words
or conduct, a lack of
agreement to continue to
engage in the activity.
64
Just in case…..

7/20/2015
s.273.1(3) Nothing in
subsection (2) shall be
construed as limiting the
circumstances in which
no consent is obtained.
65
Consent Aggravated Sexual assault
7/20/2015

S.273(4) For the purposes of this
section and section 265, no
consent to the excision, infibulation
or mutilation, in whole or in part, of
the labia majora, labia minora or
clitoris of a person is valid, except
in the cases described in
paragraphs (3)(a) and (b).

Important for Immigrant Population
66
s.273(3)(a)(b)


(3) For greater certainty, in this section, “wounds” or
“maims” includes to excise, infibulate or mutilate, in
whole or in part, the labia majora, labia minora or clitoris
of a person, except where (a) a surgical procedure is
performed, by a person duly qualified by provincial
law to practise medicine, for the benefit of the
physical health of the person or for the purpose of
that person having normal reproductive functions o
normal sexual appearance or function; or
(b) the person is at least eighteen
years of age
and there is no resulting bodily harm.
7/20/2015
67
Belief in Consent not a Defence





273.2 It is not a defence to a charge
under s. 271, 272 or 273 that the acc
believed that the V consented, where
(a) the acc’s belief arose from the acc’s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(b) the acc did not take reasonable
steps, in the circumstances known to
the acc at the time, to ascertain that the
V was consenting.
7/20/2015
68
Children and Consent – 150.1
V under age 16
s.150.1(1) Subject to subsections (2) to (2.2), when an
accused is charged with an offence under s. 151
or 152 or ss. 153(1), 160(3) or 173(2) or is charged
with an offence under s. 271, 272 or 273
in respect of a complainant under the age of 16
years,
it is not a defence that the complainant consented to
the activity that forms the subject-matter of the charge.
7/20/2015
69
V 12-14 Acc less than 2 yrs older



(2) When an accused is charged with an offence
under s. 151 or 152, ss. 173(2) or s. 271 in respect of
a complainant who is 12 or more but under 14
years, 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 towards
the complainant, is not a person with whom the
complainant is in a relationship of dependency
and is not in a relationship with the complainant
7/20/2015
70
that is exploitative of the complainant.
Victim 14-16 – acc less than 5yrs
older/acc-v married




(2.1) When an acc is charged with an offence under s. 151 or
152, ss. 173(2) or s. 271 in respect V who is 14 or more but
under 16 , it is a defence that V consented to the activity if
a)(i) the accused is (i) is less than five years older than the
complainant; and
(ii) is not in a position of trust or authority towards
the V, is not a person with whom the V is in a
relationship of dependency & is not in a
relationship with the V that is exploitative of the V.
(b) the accused is married to the V.
7/20/2015
71
Transitional – acc 5 or more yrs older

(2.2) When the acc referred to in ss. (2.1) [i.e. 14-16] is 5 or
more years older than V, it is a defence that the V consented to
the activity if, on the day on which this ss. comes into force,
(May 1/08)

(a) the acc is the common-law partner of the V, or has been
cohabiting with the V in a conjugal relationship for a period of
less than 1yr and they have had or are expecting to have a
child as a result of the relationship; and

(b) is not in a position of trust or authority towards the V, is not a person with
whom the V is in a relationship of dependency & is not in a relationship with
the V that is exploitative of the V.
7/20/2015
72
12 - 13 yr old acc exemption

7/20/2015
(3) No person aged 12 or 13
years shall be tried for an
offence under s. 151 or 152 or
ss. 173(2) unless the person is in
a position of trust or authority
towards the V, is a person with
whom the V is in a relationship of
dependency or is in a relationship
with the complainant that is
exploitative of the complainant.
73
Mistake of Age - 16

4) It is not a defence to a charge under
s. 151 or 152, ss. 160(3) or 173(2), or s.
271, 272 or 273 that the acc believed
that the v was 16 years of age or
more at the time the offence is alleged
to have been committed unless the
acc took all reasonable steps to
ascertain the age of the V.
7/20/2015
74
Mistake of Age -18

7/20/2015
150.1(5) It is not a defence to
a charge under s. 153, 159,
170, 171 or 172 or ss. 212(2)
or (4) that the acc believed
that the V was 18 yrs of age
or more at the time the
offence is alleged to have
been committed unless the
acc took all reasonable
steps to ascertain the age of
75
the V.
Mistake of Age

7/20/2015
An acc cannot raise
a mistaken belief in the age
of the V in order to invoke
a defence under ss. (2) or
(2.1) unless the acc took all
reasonable steps to
ascertain the age of the V.
150.1(6)
76
Consent –Sexual Exploitation of a Person
with a Disability by Person in Position of
Trust or in a Relationship of Dependency






153.1(2) Subject to subsection (3), "consent" means, for the
purposes of this section, the voluntary agreement of the
complainant to engage in the sexual activity in question.
(3) No consent is obtained, for the purposes of this section, if
(a) the agreement is expressed by the words or conduct of a
person other than the complainant;
(b) the complainant is incapable of consenting to the activity;
(c) the accused counsels or incites the complainant to engage
in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of
agreement to engage in the activity; or
(e) the complainant, having consented to engage in sexual
activity, expresses, by words or conduct, a lack of agreement to
7/20/2015
77
continue to engage in the activity.
Spouse can be Charged

S.278 A husband or wife may be
charged with an offence under
section 271, 272 or 273 in respect
of his or her spouse,
whether or not the spouses were
living together at the time the
activity that forms the subjectmatter of the charge occurred.
7/20/2015
78
Statements
Statements.
7/20/2015
79
Statements




7/20/2015
Young Person
Adult
Crown has onus to prove free and
Voluntary in both cases
Young person has special
protection
80
Conditions for Admissibility –
The statement must be voluntary!


R.v.Oickle, [2000] 2 S.C.R. 3
69
The doctrines of oppression and inducements are primarily concerned with
reliability. However, as the operating mind doctrine and Lamer J.'s concurrence in
Rothman, supra, both demonstrate, the confessions rule also extends to protect a
broader conception of voluntariness "that focuses on the protection of the
accused's rights and fairness in the criminal process": J. Sopinka, S. N. Lederman
and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339.
Voluntariness is the touchstone of the
confessions rule. Whether the concern is
threats or promises, the lack of an
operating mind, or police trickery that
unfairly denies the accused's right to
silence, this Court's jurisprudence has
consistently protected the accused from
having involuntary confessions
introduced into evidence. If a confession
is involuntary for any of these reasons, it
7/20/2015
81
is inadmissible.
Continued Questioning

In some circumstances, the evidence will
support a finding that continued questioning by
the police in the face of the accused's repeated
assertions of the right to silence denied the
accused a meaningful choice whether to speak
or to remain silent: see Otis. The number of
times the accused asserts his or her right to
silence is part of the assessment of all of the
circumstances, but is not in itself determinative.
The ultimate question is whether the accused
exercised free will by choosing to make a
statement: Otis, at paras. 50 and 54.
7/20/2015
82
Statements YCJA – s.146(1)


7/20/2015
s.146(1) Subject to this section,
the law relating to the
admissibility of statements
made by persons accused of
committing offences applies in
respect of young persons.
i.e. Must be free and voluntary
83
Admissibility of YP’s Statement

7/20/2015
(2) No oral or written statement
made by a young person who is
less than eighteen years old, to a
peace officer or to any other
person who is, in law, a person in
authority, on the arrest or
detention of the young person or
in circumstances where the peace
officer or other person has
reasonable grounds for
believing that the young person
has committed an offence is
admissible against the young
84
person unless
Admissibility Con’t





(b) the person to whom the statement was made has, before
the statement was made, clearly explained to the young
person, in language appropriate to his or her age and
understanding, that
(i) the young person is under no obligation to make a
statement,
(ii) any statement made by the young person may be used as
evidence in proceedings against him or her,
(iii) the young person has the right to consult counsel and a
parent or other person in accordance with paragraph (c), and
(iv) any statement made by the young person is required to be
made in the presence of counsel and any other person
consulted in accordance with paragraph (c), if any, unless the
7/20/2015
85
young person desires otherwise;
Admissibility Con’t



(c) the young person has, before the statement was
made, been given a reasonable opportunity to
consult
(i) with counsel, and
(ii) with a parent or, in the absence of a parent, an
adult relative or, in the absence of a parent and an
adult relative, any other appropriate adult chosen by
the young person, as long as that person is not a coaccused, or under investigation, in respect of the
same offence; and
7/20/2015
86
Admissibility Con’t

7/20/2015
(d) if the young person consults a
person in accordance with
paragraph (c), the young person
has been given a reasonable
opportunity to make the statement
in the presence of that person.
87
SCC: R. v L.T.H.
7/20/2015
[2008] S.C.J. No. 50

The test for compliance with s.
146(2)(b) is objective.

55
Like voluntariness, the
issue of whether a detained
youth has received a clear
explanation of his rights and
options, and whether he has
understood those rights to the
extent necessary for an
effective waiver, are essentially
questions of fact.
88
SCC: R. v L.T.H.

[2008] S.C.J. No. 50
In my view, the Crown's evidentiary
burden will be discharged by clear and
convincing evidence that the person to
whom the statement was made took
reasonable steps to ensure that the
young person who made it understood
his or her rights under s. 146 of the YCJA.
A mere probability of compliance is
incompatible with the object and scheme
of s. 146, read as a whole. Compliance
must be established beyond a reasonable
doubt
7/20/2015
89
SCC: R. v L.T.H.

[2008] S.C.J. No. 50
23 The kind of reasonable efforts that must be
made by police officers were ably summarized in, R.
v. C.G. 1986 CarswellOnt 1556 (Prov. Ct. (Fam.
Div.)):... persons in authority taking statements
must learn something about the educational level
of the child, the language and vocabulary skills of
the child, his faculties of understanding, his
emotional state at the time. These inquiries do not
call for the intervention of a psychologist, or a
telephone call to the school teacher, or even to a
parent. But they do require enough conversation
with the young person, to permit the officer to
determine how many phrases must be explained
and to what extent he must use ordinary or street
language or even slang to be sure the child
7/20/2015
90
understands what is being said.
SCC: R. v L.T.H.

[2008] S.C.J. No. 50
26
I take care not to be understood to
require police officers, as the trial judge
apparently did in this case, to ask young
persons in every case to "recite back" or
"explain back" their rights. In some
instances, this may well demonstrate that
the explanation was both appropriate and
sufficient. And it may tend to show that
the rights waived were in fact understood
- which is of course essential to the
validity of the waiver. But "reciting back"
or "explaining back" is not transformed by
its evident utility into a legal requirement
7/20/2015
91
under s. 146.
SCC: R. v L.T.H.

7/20/2015
[2008] S.C.J. No. 50
A clear and unequivocal
waiver is thus essential,
but not sufficient: it must
be accompanied by a
proper understanding of
the purpose the right was
meant to serve and an
appreciation of the
consequences of declining
its protection.
92
SCC: R. v L.T.H.

[2008] S.C.J. No. 50
8
I hasten to add, however, that this
exacting standard should not be taken to
impose on the Crown a burden that it
cannot properly be expected to
discharge. Where compliance with the
informational component is established
beyond a reasonable doubt, the trial
judge will be entitled - and, indeed,
expected - to infer, in the absence of
evidence to the contrary, that the young
person in fact understood his or her
7/20/2015
93
rights under s. 146.
Police Caution – R.v. Singh


[2007] 3 S.C.R. 405
The importance of reaffirming the individual's right to choose whether to
speak to the authorities after he or she is detained is reflected in the
jurisprudence concerning the timing of the police caution. René Marin, in
his text Admissibility of Statements (9th ed. (loose-leaf)), at pp. 2-24.2
and 2-24.3, provides a useful [page424] yardstick for the police on when
they should caution a suspect:
The warning should be given when there are
reasonable grounds to suspect that the person
being interviewed has committed an offence. An
easy yardstick to determine when the warning
should be given is for a police officer to consider
the question of what he or she would do if the
person attempted to leave the questioning room
or leave the presence of the officer where a
communication or exchange is taking place. If
the answer is arrest (or detain) the person, then
7/20/2015
94
the warning should be given.
Why Give The Caution?

7/20/2015
Where the suspect has not
consulted with counsel,
however, the police caution
becomes all the more
important as a factor in
answering the ultimate
question of voluntariness.
95
Testimonial Aids

7/20/2015
Provisions Attempting to help in
obtaining full and accurate
evidence of the offence in the
courtroom
96
Open Court
486.(1) Any proceedings against an accused shall be
held in open court, but the presiding judge or justice
may order the exclusion of all or any members of the
public from the court room for all or part of the
proceedings if the judge or justice is of the opinion
that such an order is in the interest of public
morals, the maintenance of order or the proper
administration of justice or is necessary to prevent
injury to international relations or national defence or
national security.
2) For the purposes of subsection (1), the “proper
administration of justice” includes ensuring that
(a) the interests of witnesses under the age of
7/20/2015
97
eighteen years are safeguarded in all proceedings;
Support Person
s.486.1(1) In any proceedings against an
accused, the judge or justice shall, on
application of the prosecutor, of a
witness who is under the age of
eighteen years or of a witness who
has a mental or physical disability,
order that a support person of the
witness’ choice be permitted to be
present and to be close to the witness
while the witness testifies, unless the
judge or justice is of the opinion that the
order would interfere with the proper
administration of justice.
7/20/2015
98
Testimony outside Courtroom

s. 486.2) Despite section 650, in any proceedings
against an accused, the judge or justice shall, on
application of the prosecutor, of a witness who is
under the age of eighteen years or of a witness
who is able to communicate evidence but may
have difficulty doing so by reason of a mental or
physical disability, order that the witness testify
outside the court room or behind a screen or other
device that would allow the witness not to see the
accused, unless the judge or justice is of the opinion
that the order would interfere with the proper
administration of justice.
7/20/2015
99
Accused not to examine witness under 18

S486.3 (1) In any proceedings against an accused, on
application of the prosecutor or a witness who is
under the age of eighteen years, the accused shall
not personally cross-examine the witness, unless
the judge or justice is of the opinion that the proper
administration of justice requires the accused to
personally conduct the cross-examination. The judge
or justice shall appoint counsel to conduct the
cross-examination if the accused does not
personally conduct the cross-examination
7/20/2015
100
Order Restricting Publication of Identity




486.4(1) Subject to subsection (2), the presiding
judge or justice may make an order directing that
any information that could identify the complainant or
a witness shall not be published in any document or
broadcast or transmitted in any way, in proceedings
in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1,
155, 159, 160, 162, 163.1, 170, 171, 172, 172.1,
173, 210, 211, 212, 213, 271, 272, 273, 279.01,
279.02, 279.03, 346 or 347,
N.B. Previous Offences also covered by this section.101
7/20/2015
Publication Victim/Witness under 18


7/20/2015
486.4(2) In proceedings in respect
of the offences referred to in
paragraph (1)(a) or (b), the
presiding judge or justice shall (a)
at the first reasonable opportunity,
inform any witness under the age
of eighteen years and the
complainant of the right to make
an application for the order; and
(b) on application made by the
complainant, the prosecutor or
any such witness, make the
order.
102
Restricting Publication Child Pornography

7/20/2015
(3) In proceedings in respect of an
offence under section 163.1, a judge or
justice shall make an order directing
that any information that could identify
a witness who is under the age of
eighteen years, or any person who is
the subject of a representation,
written material or a recording that
constitutes child pornography within the
meaning of that section, shall not be
published in any document or
broadcast or transmitted in any way.
103
Video Recording V/Witness less than 18 Yrs old

715.1(1) In any proceeding against an accused in
which a victim or other witness was under
the age of eighteen years at the time the
offence is alleged to have been committed, a
video recording made within a reasonable time
after the alleged offence, in which the victim or
witness describes the acts complained of, is
admissible in evidence if the victim or witness,
while testifying, adopts the contents of the video
recording, unless the presiding judge or justice
is of the opinion that admission of the video
recording in evidence would interfere with the
7/20/2015
104
proper administration of justice.
Video Recording- V/Witness Disability

715.2 (1) In any proceeding against an accused in
which a victim or other witness is able to
communicate evidence but may have difficulty doing
so by reason of a mental or physical disability, a
video recording made within a reasonable time after
the alleged offence, in which the victim or witness
describes the acts complained of, is admissible in
evidence if the victim or witness, while testifying,
adopts the contents of the video recording, unless
the presiding judge or justice is of the opinion that
admission of the video recording in evidence would
interfere with the proper administration of justice.
7/20/2015
105
Evidence – Will it Be Admissible?
7/20/2015
106
Similar Fact Evidence



7/20/2015
Prove the accused committed similar
acts to the one he is charged with. Need
not be (identical)
Mainly Used to Prove
Identity of accused
rebutting defences of:
Innocent association
Accident
Mistake
Be aware that if court determines that,
on the balance of probabilities, collusion
occurred, the evidence is NOT
admissible
107
Test for Admissibility – Voire Dire




The evidence must be relevant
-andThe probative value of the evidence must exceed its
prejudicial effect (test based on a balance of probability).
Moral Prejudice - infer guilt from general
disposition or propensity
Reasoning prejudice – With respect to reasoning
prejudice, the danger was that the jury might
become confused by the multiplicity of
incidents, and become distracted by the
cumulative force of so many allegations from
their task of deciding carefully each charge one
by one. R. v. Shearing,[2002]SCC 58.
7/20/2015
108
Prior Consistent Statements R. V. F.(J..E.) (1993)85C.C.C. (3d) 457 (Ont. CA)


Para. 42 To summarize. Recent complaint
evidence is not admissible at the instance
of the Crown as an exception to the rule
against prior consistent statements unless
and until the accused raises the issue of
recent fabrication. Then, and only then,
evidence of the fact of prior consistent
statements is admissible to rebut this
attack.
The Crown can, however, lead evidence of
prior consistent statements as part of the
res gestae (a limited tool) or as part of the
7/20/2015
109
narrative.
Prior Consistent Statements of V
To qualify as narrative, the witness must recount
relevant and essential facts which describe and explain
his or her experience as a victim of the crime alleged
so that the trier of fact will be in a position to
understand what happened and how the matter came
to the attention of the proper authorities. In all cases
where evidence is admitted under the rubric of prior
consistent statements, the trial judge is obliged to
instruct the jury as to the limited value of the evidence.
The fact that the statements were made is
admissible to assist the jury as to the sequence of
events from the alleged offence to the
prosecution so that they can understand the
conduct of the complainant and assess her
truthfulness. However, the jury must be
instructed that they are not to look to the content
of the statements as proof that a crime has been
7/20/2015
110
committed.
KGB Statements





7/20/2015
Involves the use of a witness’s prior
inconsistent statement For Proof.
SCC R. v. Coffin – show the witness the
statement to see if it refreshes their
memory.
If not, application under 9(2) CEA to cross
examine witness on statement – Milgaard
procedure.
Then under 9(1) declare adverse – general
cross examination.
If not adopted, can’t use the statement for
the proof of its content only to show
111
witness lacks credibility.
KGB – relevant – necessary – reliable
Statement is Proof – ‘Usual’ Requirements




1. Need original tape of statement
2. Need person who took statement to testify
3. The statement must have been given under oath
or solemn declaration with sufficient warnings of
sanctions and the significance of the oath or
affirmation i.e. must show sufficient guarantees of
trustworthiness
Must prove on the balance of probabilities it is
reliable: i) no coercion
ii) no threats or promises
iii)not the product of excessively leading
7/20/2015
112
questions
Exception
to
Hearsay
Rule
R. v. Khan, [1990] 2
S.C.R. 531 – 3 1/2 year old girl told mother 15 minutes after meeting with doctor of a
sexual assault - child held not to be competent to testify – mother’s evidence admitted

Reliability
And


7/20/2015
Necessity
A new but well established
frontier!
113
Necessity

The first question should be whether
reception of the hearsay statement is
necessary.

Necessity for these purposes must be
interpreted as "reasonably necessary". The
inadmissibility of the child's evidence might
be one basis for a finding of necessity. But
sound evidence based on psychological
assessments that testimony in court might
be traumatic for the child or harm the child
might also serve. There may be other
examples of circumstances which could
establish the requirement of necessity.
7/20/2015
114
Reliabilty


30
The next question should be whether the
evidence is reliable. Many considerations such
as timing, demeanour, the personality of the
child, the intelligence and understanding of the
child, and the absence of any reason to expect
fabrication in the statement may be relevant on
the issue of reliability.
I would not wish to draw up a strict list of
considerations for reliability, nor to suggest that
certain categories of evidence (for example the
evidence of young children on sexual
encounters) should be always regarded as
reliable. The matters relevant to reliability will
vary with the child and with the circumstances,
and are best left to the trial judge.
7/20/2015
115
New
Rule
For
admissibility
of
Hearsay
Evidence
R.v. Smith[1992] 2 S.C.R. 915
R.v. Smith, [1992] 2 S.C.R. 915
 Para45…In my opinion, hearsay evidence of
statements made by persons who are not
available to give evidence at trial ought generally
to be admissible, where the circumstances under
which the statements were made satisfy the
criteria of necessity and reliability set out in
Khan, and subject to the residual discretion of the
trial judge to exclude the evidence when its
probative value is slight and undue prejudice
might result to the accused. Properly cautioned
by the trial judge, juries are perfectly capable of
determining what weight ought to be attached to
such evidence, and of drawing reasonable
inferences therefrom.
7/20/2015
116
R. F.J.U. [1995] S.C.J.
No. 82

7/20/2015
Witness recants but,
striking similarity between
the recanting witness’s
statement and the
accused’s statement
117
Statement may be Admissible


46…The necessity criterion need not be assessed as it is
met whenever a witness recants
47
If the additional indicia of reliability I specified in B. (K.G.)
are present, an oath or affirmation following a warning of penal
consequences for lying, and a videotape of the statement, the
reliability assessment can be relatively easily made. If the
reliability criterion is to be met, in rare cases, by
the striking similarity between the statement
being assessed and another statement which is
already clearly substantively admissible, the trial
judge must be satisfied on a balance of
probabilities that there are striking similarities
between the two statements, and that there was
neither reason nor opportunity for the declarants
to collude and no improper influence by
interrogators or other third parties.
7/20/2015
118
Myths And Fears
7/20/2015

Accessing Personal Records

Prior Sexual Activity of the Victim
119
Victim’s Prior Sexual Conduct



276 (1) In proceedings in respect of an offence under
section 151, 152, 153, 153.1, 155 or 159, subsection
160(2) or (3) or section 170, 171, 172, 173, 271, 272
or 273, evidence that the complainant has engaged in
sexual activity, whether with the accused or with any
other person, is not admissible to support an inference
that, by reason of the sexual nature of that activity, the
complainant
(a) is more likely to have consented to the sexual
activity that forms the subject-matter of the
charge; or
(b) is less worthy of belief.
7/20/2015
120
Victim’s Prior Sexual Conduct

276(2) (2) In proceedings in respect of an offence referred to in
subsection (1), no evidence shall be adduced by
or on behalf of the accused that the
complainant has engaged in sexual activity
other than the sexual activity that forms the
subject-matter of the charge, whether with
the accused or with any other person, unless the



judge, provincial court judge or justice determines, in
accordance with the procedures set out in sections 276.1 and
276.2, (i.e. a hearing) that the evidence
(a) is of specific instances of sexual activity;
(b) is relevant to an issue at trial; and
(c) has significant probative value that is not substantially
outweighed by the danger of prejudice to the proper
7/20/2015
121
administration of justice.
Evidence of Victim’s Reputation
277 In proceedings in respect of an offence
under section 151, 152, 153, 153.1, 155
or 159, subsection 160(2) or (3) or
section 170, 171, 172, 173, 271, 272 or
273, evidence of sexual
reputation, whether general or
specific, is not admissible for
the purpose of challenging or
supporting the credibility of the
complainant.
7/20/2015
122
Personal Record Defined - 278.1

278.1 For the purposes of sections 278.2 to
278.9, "record" means any form of record
that contains personal information for which
there is a reasonable expectation of privacy
and includes, without limiting the generality of the
foregoing, medical, psychiatric, therapeutic, counselling,
education, employment, child welfare, adoption and social
services records, personal journals and diaries, and
records containing personal information the production or
disclosure of which is protected by any other Act of
Parliament or a provincial legislature, but does not include
records made by persons responsible for the investigation
or prosecution of the offence.
7/20/2015
123
Non- Disclosure of Personal records





(1) No
record relating to a complainant or a
witness shall be produced to an accused in
any proceedings in respect of
(a) an offence under s. 151, 152, 153, 153.1, 155, 159, 160,
170, 171, 172, 173, 210, 211, 212, 213, 271, 272 or 273,
(b) an offence under s. 144, 145, 149, 156, 245 or 246 of the
Criminal Code, chapter C-34 of the Revised Statutes of
Canada, 1970, as it read immediately before January 4, 1983,
or
(c) an offence under s. 146, 151, 153, 155, 157, 166 or 167 of
the Criminal Code, chapter C-34 of the Revised Statutes of
Canada, 1970, as it read immediately before January 1, 1988,
or in any proceedings in respect of two or more offences that
include an offence referred to in any of paragraphs (a) to (c),
except in accordance with sections 278.3
7/20/2015
124
to 278.91.
Disclosure Exception to Rule

(2) Section 278.1, this section and sections 278.3 to 278.91
apply where a record is in the possession or control of any
person, including the prosecutor in the proceedings,
unless, in the case of a record in the possession or control of
the prosecutor, the complainant or witness to whom
the record relates has expressly waived the
application of those sections.

(3) In the case of a record in respect of which this section
applies that is in the possession or control of the prosecutor,
the prosecutor shall notify the accused that the record is in the
prosecutor’s possession but, in doing so, the prosecutor shall
not disclose the record’s contents.
7/20/2015
125
Police Duty To Flag


7/20/2015
Procedure in this province is
that the Police Flag anything
that they want the Crown to
review for non-disclosure –
Therefore, if your disclosure
package contains personal
records they must be
Flagged.
126
Disclosure of Record in whole or in Part



7/20/2015
The procedure for making
application for production of
personal records is set out in
s.278.3 to 278.7. An application
can only be made to the trial court
Judge.
The keeper of the record and the
person to whom the record relates
can appear and make submissions
at the hearing but they are not
compellable witnesses.
Victim Services should be
contacted to help the victim or
127
witness.
The Test For Production

7/20/2015
278.7(1) Where the judge is
satisfied that the record or part
of the record is likely relevant to
an issue at trial or to the
competence of a witness to
testify and its production is
necessary in the interests of
justice, the judge may order that
the record or part of the record
that is likely relevant be
produced to the accused,
subject to any conditions that
may be imposed pursuant to
128
subsection (3).
Offences

7/20/2015
The following are the most often
used sections when dealing with
sexually assaultive behaviour
directed towards children – it is not
an exhaustive list!
129
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 liable to
imprisonment for a term not exceeding ten years and
to a minimum punishment of imprisonment for a term
of forty-five days; or
(b) is guilty of an offence punishable on summary
conviction and liable to imprisonment for a term not
exceeding eighteen months and to a minimum
punishment of imprisonment for a term of fourteen
days.
7/20/2015
130
Invitation to Sexual Touching



152 Every person who, for a sexual purpose, invites, counsels
or incites a person under the age of 16 years 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 person under
the age of 16 years,
(a) is guilty of an indictable offence and liable to imprisonment
for a term not exceeding ten years and to a minimum
punishment of imprisonment for a term of forty-five days; or
(b) is guilty of an offence punishable on summary conviction
and liable to imprisonment for a term not exceeding eighteen
months and to a minimum punishment of imprisonment for a
term of fourteen days.
7/20/2015
131
Sexual Expoitation
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.
153(1.2)(2) (2) In this section, "young person" means a
person 16 years of age or more but under the age of eighteen
7/20/2015
132
years.
s.153 Penalty Section


(1.1) Every person who commits an offence under
subsection (1) (a) is guilty of an indictable offence and
liable to imprisonment for a term not exceeding ten
years and to a minimum punishment of imprisonment
for a term of forty-five days; or
(b) is guilty of an offence punishable on summary
conviction and liable to imprisonment for a term not
exceeding eighteen months and to a minimum
punishment of imprisonment for a term of fourteen
days.
7/20/2015
133
s. 153 Inference




7/20/2015
1.2) A judge may infer that a person is in
a relationship with a young person that is
exploitative of the young person from the
nature and circumstances of the
relationship, including (a) the age of the
young person;
(b) the age difference between the
person and the young person;
(c) the evolution of the relationship; and
(d) the degree of control or influence by
the person over the young person.
134
Sexual Exploitation with a person with a disability




153.1 (1) Every person who is in a position of trust or authority
towards a person with a mental or physical disability or who is
a person with whom a person with a mental or physical
disability is in a relationship of dependency and who, for a
sexual purpose, counsels or incites that person to touch,
without that person’s consent, his or her own body, the body
of the person who so counsels or incites, or the body of any
other person, directly or indirectly, with a part of the body or
with an object, is guilty of
(a) an indictable offence and liable to imprisonment for a term
not exceeding five years; or
(b) an offence punishable on summary conviction and liable to
imprisonment for a term not exceeding eighteen months.
(2) Subject to subsection (3), "consent" means, for the
purposes of this section, the voluntary agreement of the
7/20/2015
135
complainant to engage in the sexual activity in question.
Incest

155(1) Every one commits incest who, knowing that another
person is by blood relationship his or her parent, child,
brother, sister, grandparent or grandchild, as the case may
be, has sexual intercourse with that person.

(2) Every one who commits incest is guilty of an indictable
offence and liable to imprisonment for a term not exceeding
fourteen years.
(3) No accused shall be determined by a court to be guilty of an
offence under this section if the accused was under restraint,
duress or fear of the person with whom the accused had the
sexual intercourse at the time the sexual intercourse occurred.



(4) In this section, "brother" and "sister" , respectively,
7/20/2015
include half-brother and half-sister.
136
Bestiality
160 (1) Every person who commits bestiality is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding ten years or is guilty of an offence punishable on
summary conviction.
 (2) Every person who compels another to commit bestiality is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding ten years or is guilty of an offence
punishable on summary conviction.
 (3) Notwithstanding subsection (1), every person who, in the
presence of a person under the age of 16 years, commits
bestiality or who incites a person under the age of 16 years to
commit bestiality is guilty of an indictable offence and liable to
imprisonment for a term not exceeding ten years or is guilty of
an offence punishable on summary conviction. R.S., 1985, c. C7/20/2015
137
46, s. 160; R.S., 1985, c. 19 (3rd Supp.), s. 3; 2008, c. 6, s. 54.
Voyeurism




162(1) Every one commits an offence who, surreptitiously,
observes — including by mechanical or electronic means — or
makes a visual recording of a person who is in circumstances
that give rise to a reasonable expectation of privacy, if
(a) the person is in a place in which a person can reasonably
be expected to be nude, to expose his or her genital organs or
anal region or her breasts, or to be engaged in explicit sexual
activity;
(b) the person is nude, is exposing his or her genital organs or
anal region or her breasts, or is engaged in explicit sexual
activity, and the observation or recording is done for the
purpose of observing or recording a person in such a state or
engaged in such an activity; or
(c) the observation or recording is done for a sexual purpose.
7/20/2015
138
Definition of Visual recording
(2) In this section, “visual recording”
includes a photographic, film or video
recording made by any means.

7/20/2015
(3) Paragraphs (1)(a) and (b) do not
apply to a peace officer who, under the
authority of a warrant issued under
section 487.01, is carrying out any
activity referred to in those paragraphs.
139
Printing/Publishing & Punishment


(4) Every one commits an offence who, knowing that a
recording was obtained by the commission of an
offence under subsection (1), prints, copies, publishes,
distributes, circulates, sells, advertises or makes
available the recording, or has the recording in his or
her possession for the purpose of printing, copying,
publishing, distributing, circulating, selling or
advertising it or making it available.
(5) Every one who commits an offence under
subsection (1) or (4) (a) is guilty of an indictable
offence and liable to imprisonment for a term not
exceeding five years; or
(b) is guilty of an offence punishable on summary
conviction.
7/20/2015
140
Defence
(6) No person shall be convicted of an offence under
this section if the acts that are alleged to constitute the
offence serve the public good and do not extend
beyond what serves the public good.

(7) For the purposes of subsection (6),
(a) it is a question of law whether an act serves the
public good and whether there is evidence that the act
alleged goes beyond what serves the public good, but
it is a question of fact whether the act does or does
not extend beyond what serves the public good; and
7/20/2015
(b) the motives of an accused are irrelevant.
141
Definition of Child Pornography






163.1(1) In this section, "child pornography" means
(a) a photographic, film, video or other visual representation,
whether or not it was made by electronic or mechanical means,
(i) that shows a person who is or is depicted as being under
the age of eighteen years and is engaged in or is depicted as
engaged in explicit sexual activity, or
(ii) the dominant characteristic of which is the depiction, for a
sexual purpose, of a sexual organ or the anal region of a
person under the age of eighteen years;
(b) any written material, visual representation or audio
recording that advocates or counsels sexual activity with a
person under the age of eighteen years that would be an
offence under this Act;
(c) any written material whose dominant characteristic is the
description, for a sexual purpose, of sexual activity with a
7/20/2015
person under the age of eighteen years that would be an 142
Child Pornography –
Becoming Major Issue- amongst Teens


7/20/2015
163.1(2) Every person who makes,
prints, publishes or possesses for the
purpose of publication any child
pornography is guilty of (a) an indictable
offence and liable to imprisonment for a
term not exceeding ten years and to a
minimum punishment of imprisonment
for a term of one year; or
(b) an offence punishable on summary
conviction and liable to imprisonment for
a term not exceeding eighteen months
and to a minimum punishment of
imprisonment for a term of ninety days.
143
Transmits Child Pornography


7/20/2015
163.1 3) Every person who transmits, makes available,
distributes, sells, advertises, imports, exports or
possesses for the purpose of transmission, making
available, distribution, sale, advertising or exportation
any child pornography is guilty of (a) an indictable
offence and liable to imprisonment for a term not
exceeding ten years and to a minimum punishment of
imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and
liable to imprisonment for a term not exceeding
eighteen months and to a minimum punishment of
imprisonment for a term of ninety days.
144
Possesses Child Pornography


7/20/2015
(4) Every person who possesses any
child pornography is guilty of (a) an
indictable offence and liable to
imprisonment for a term not exceeding
five years and to a minimum punishment
of imprisonment for a term of forty-five
days; or
(b) an offence punishable on summary
conviction and liable to imprisonment for
a term not exceeding eighteen months
and to a minimum punishment of
imprisonment for a term of fourteen
days.
145
Accessing Child Pornography



(4.1) Every person who accesses any child pornography is
guilty of (a) an indictable offence and liable to imprisonment
for a term not exceeding five years and to a minimum
punishment of imprisonment for a term of forty-five days; or
(b) an offence punishable on summary conviction and liable to
imprisonment for a term not exceeding eighteen months and
to a minimum punishment of imprisonment for a term of
fourteen days.
4.2) For the purposes of subsection (4.1), a person accesses
child pornography who knowingly causes child pornography
to be viewed by, or transmitted to, himself or herself.
7/20/2015
146
Defence Re Age
(5) It is not a defence to a charge under
subsection (2) in respect of a visual
representation that the accused believed that a
person shown in the representation that is
alleged to constitute child pornography was or
was depicted as being eighteen years of age or
more unless the accused took all reasonable
steps to ascertain the age of that person and
took all reasonable steps to ensure that, where
the person was eighteen years of age or more,
the representation did not depict that person as
7/20/2015 being under the age of eighteen years.
147

Mailing Obscene Material
168(1) Every one commits an
offence who makes use of the
mails for the purpose of
transmitting or delivering anything
that is obscene, indecent, immoral
or scurrilous.
7/20/2015
148
Parent or Guardian Procuring
Sexual Activity



170. Every parent or guardian of a person under the age of
eighteen years who procures the person for the purpose of
engaging in any sexual activity prohibited by this Act with a
person other than the parent or guardian is guilty of an
indictable offence and liable
(a) to imprisonment for a term not exceeding five years and
to a minimum punishment of imprisonment for a term of six
months if the person procured is under the age of 16 years;
or
(b) to imprisonment for a term not exceeding two years and
to a minimum punishment of imprisonment for a term of
forty-five days if the person procured is 16 years of age or
more but under the age of eighteen years.
7/20/2015
149
Householder Permitting Sexual Activity
171. Every owner, occupier or manager of premises, or any
other person who has control of premises or assists in the
management or control of premises, who knowingly permits a
person under the age of eighteen years to resort to or to be in
or on the premises for the purpose of engaging in any sexual
activity prohibited by this Act is guilty of an indictable offence
and liable
 (a) to imprisonment for a term not exceeding five years and to
a minimum punishment of imprisonment for a term of six
months if the person in question is under the age of 16 years;
or
 (b) to imprisonment for a term not exceeding two years and to
a minimum punishment of imprisonment for a term of forty-five
days if the person is 16 years of age or more but under the
age of eighteen years.
7/20/2015
150

Luring




172.1(1) Every person commits an offence who, by means of a
computer system within the meaning of subsection 342.1(2),
communicates with
(a) a person who is, or who the accused believes is, under the
age of eighteen years, for the purpose of facilitating the
commission of an offence under subsection 153(1), section 155
or 163.1, subsection 212(1) or (4) or section 271, 272 or 273
with respect to that person;
(b) a person who is, or who the accused believes is, under the
age of 16 years, for the purpose of facilitating the commission
of an offence under section 151 or 152, subsection 160(3) or
173(2) or section 280 with respect to that person; or
(c) a person who is, or who the accused believes is, under the
age of 14 years, for the purpose of facilitating the commission
of an offence under section 281 with respect to that person.
7/20/2015
151
Luring con’t

(3) Evidence that the person referred to in paragraph (1)(a), (b)
or (c) was represented to the accused as being under the age
of eighteen years, sixteen years or fourteen years, as the case
may be, is, in the absence of evidence to the contrary, proof
that the accused believed that the person was under that age.

(4) It is not a defence to a charge under paragraph (1)(a), (b) or
(c) that the accused believed that the person referred to in that
paragraph was at least eighteen years of age, sixteen years or
fourteen years of age, as the case may be, unless the accused
took reasonable steps to ascertain the age of the person. 2002,
c. 13, s. 8; 2007, c. 20, s. 1; 2008, c. 6, s. 14
7/20/2015
152
Indecent Acts




7/20/2015
173(1) Every one who wilfully does
an indecent act
(a) in a public place in the
presence of one or more persons,
or
(b) in any place, with intent thereby
to insult or offend any person,
is guilty of an offence punishable
on summary conviction
153
Exposure

7/20/2015
(2) Every person who, in any
place, for a sexual purpose,
exposes his or her genital organs
to a person who is under the age
of 16 years is guilty of an offence
punishable on summary conviction.
154
Nudity






7/20/2015
174. (1) Every one who, without lawful excuse,
(a) is nude in a public place, or
(b) is nude and exposed to public view while on private
property, whether or not the property is his own,
is guilty of an offence punishable on summary
conviction.
(2) For the purposes of this section, a person is nude
who is so clad as to offend against public decency or
order.
(3) No proceedings shall be commenced under this
section without the consent of the Attorney General.
155
Sexual assault

271 (1) Every one who commits a sexual
assault is guilty of

(a) an indictable offence and is liable to
imprisonment for a term not exceeding
ten years; or
(b) an offence punishable on summary
conviction and liable to imprisonment for
a term not exceeding eighteen months
7/20/2015
156
Sexual assault with
weapon/causing Bodily Harm





7/20/2015
272(1) Every person commits an offence
who, in committing a sexual assault,
(a) carries, uses or threatens to use a
weapon or an imitation of a weapon;
(b) threatens to cause bodily harm to a
person other than the complainant;
(c) causes bodily harm to the
complainant; or
(d) is a party to the offence with any
other person.
157
s.272 Penalty Section









(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence
and liable (a) if a restricted firearm or prohibited firearm is used in the commission of the
offence or if any firearm is used in the commission of the offence and the offence is committed
for the benefit of, at the direction of, or in association with, a criminal organization, to
imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment
for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to
imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment
for a term of four years; and
(b) in any other case, to imprisonment for a term not exceeding fourteen years.
(3) In determining, for the purpose of paragraph (2)(a), whether a convicted person has
committed a second or subsequent offence, if the person was earlier convicted of any of the
following offences, that offence is to be considered as an earlier offence: (a) an offence under
this section;
(b) an offence under subsection 85(1) or (2) or section 244; or
(c) an offence under section 220, 236, 239 or 273, subsection 279(1) or section 279.1, 344 or
346 if a firearm was used in the commission of the offence.
However, an earlier offence shall not be taken into account if 10 years have elapsed between
the day on which the person was convicted of the earlier offence and the day on which the
person was convicted of the offence for which sentence is being imposed, not taking into
account any time in custody.
7/20/2015
158
Aggravated Sexual Assault

273(1) Every one commits an aggravated sexual assault who, in committing
a sexual assault, wounds, maims, disfigures or endangers the life of the
complainant.
(2) Every person who commits an aggravated sexual assault is guilty of an
indictable offence and liable (a) if a restricted firearm or prohibited firearm is
used in the commission of the offence or if any firearm is used in the
commission of the offence and the offence is committed for the benefit of, at
the direction of, or in association with, a criminal organization, to
imprisonment for life and to a minimum punishment of imprisonment for a
term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the
offence, to imprisonment for life and to a minimum punishment of
imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
7/20/2015
159