Full Text:Volume 1.1B

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Contents

SEXUAL OFFENCES

Sexual Interference


Sexual Interference
s. 151 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum 90 days incarceration
Maximum 2 years less a day incarceration
Indictable Dispositions
Avail. Disp. same as summary
Minimum 1 year incarceration
Maximum 14 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to sexual interference are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 151 [sexual interference] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) OK Symbol.png (14 years max)

Offences under s. 151 [sexual interference] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 151 [sexual interference] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 151 [sexual interference], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Fingeprints and Photos

A peace officer who charges a person under s. 151 [sexual interference] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

Section s. 151 [sexual interference] offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 151 [sexual interference] X Mark Symbol.png OK Symbol.png (Primary) OK Symbol.png X Mark Symbol.png

Section s. 151 [sexual interference] offences are "primary designated offences" under s. 752 for a Dangerous Offender Order. The offender will be deemed a "substantial risk" for a Long-Term Offender Order under s. 753.1.

Offences under s. 151 [sexual interference] are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

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.

R.S., 1985, c. C-46, s. 151; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 3; 2008, c. 6, s. 54; 2012, c. 1, s. 11; 2015, c. 23, s. 2.

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
151 [sexual interference] (2008 to present) Sexual Interference (with hands) "...did for a sexual purpose touch [alleged victim name or initialism] a person under the age of sixteen years [directly or indirectly] with a part of his body, to wit [identify accused's body part], contrary to section 151 of the Criminal Code."[1]
151 [sexual interference] (2008 to present) Sexual Interference (with object) "...did for a sexual purpose touch [alleged victim name or initialism] a person under the age of sixteen years [directly or indirectly] with an object, to wit [identify the object used by the accused], contrary to section 151 of the Criminal Code."

Proof of the Offence

Proving sexual interference under s. 151 should include: [2]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. that victim was under the age of 16 at the time of the events alleged
  5. the culprit knew the victim was under 16 or the accused did not take "all reasonable steps" to ascertain the age of the victim (per s. 150.1(4))[3]
  6. the culprit touched the victim anywhere;
  7. the culprit used his body or an object;
  8. that that touching was for a sexual purpose
  1. e.g. R v GG, 2018 SKQB 169 (CanLII)
  2. R v Quinones, 2012 BCCA 94 (CanLII), per Hinkson JA
  3. see Consent in Sexual Offences

Interpretation of the Offence

"[A]n accused who intends sexual interaction of any kind with a child and with that intent makes contact with the body of a child “touches” the child and is guilty of an offence. The section addresses not the instigator of the sexual conduct but rather the adult who for his or her own sexual purposes makes contact, whether as a primary actor or not, with the body of a child." [1]

It is suggested that sexual interference is a specific intent offence.[2]

  1. R v Sears (1990), 58 CCC (3d) 62, 1990 CanLII 10938 (MB CA), per Helper JA
  2. R v B(KW) (1993), 81 CCC (3d) 389, 1993 CanLII 14711 (MB CA), per Twaddle JA

Sexual Purpose

Interference is a specific intent offence that requires proof that the touching was done for a "sexual purpose".[1]

A "sexual purpose" refers to the "sexual gratification" of the accused.[2] A "sexual purpose" can be found from the "circumstances of the situation, including the nature of the touching and any words or gestures accompanying the act".[3]

The term is also found in Definition of Child Pornography as well as the offences of Invitation to Sexual Touching (Offence), Sexual Exploitation (Offence), Voyeurism (Offence), and Indecent Act (Offence).

  1. R v KWB (1993), 81 CCC (3d) 389, 1993 CanLII 14711 (MB CA), per Twaddle JA, at p. 392
    R v Sears (1990), 58 CCC (3d) 62, 1990 CanLII 10938 (MB CA), per Helper JA, at p. 64
  2. Sears, ibid., at p. 64
  3. R v JAB, 2002 CarswellOnt 3241, [2002] OJ No 3755(*no CanLII links) , at para 43
    See also Sexual Assault (Offence)#Sexual Purpose

Evidence

Modification of Rules of Evidence

For offences under this section (s. 151):

Limitations on Admissibility of Evidence

For offences under this section (s. 151):

  • prior sexual history of the complainant "is not admissible to support an inference that...by reason of the sexual nature of that activity, the complainant...is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or... is less worthy of belief.": see Evidence of complainant’s sexual activity under s. 276.
  • any "evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.": See reputation evidence under s. 277.
Restrictions on Disclosure

For offences under this section (s. 151), the Crown cannot disclose any records attracting a "reasonable expectation of privacy" that relate "to a complainant or a witness" unless applied for through the process described in s. 278.2 to 278.91: see s. 276.

Defences

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Offence(s) Victim Notice
of agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 151 [sexual interference] OK Symbol.png OK Symbol.png OK Symbol.png

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles on sentence for sexual offences, see Sexual Offences
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 151 [sexual interference]
From July 17, 2015
Summary Election 2 years less a day incarceration
s. 151 [sexual interference]
Until July 16, 2015
Summary Election 18 months incarceration
s. 151 [sexual interference]
November 1, 2005 to July 16, 2015
Summary Election 18 months incarceration
s. 151 [sexual interference]
Until October 31, 2005
Summary Election 6 months and/or $5,000
s. 151 [sexual interference]
From July 17, 2015
Indictable Election 14 years incarceration
s. 151 [sexual interference]
Until July 16, 2015
Indictable Election 10 years incarceration

Offences under s. 151 [sexual interference] are hybrid. If prosecuted by indictment, the maximum penalty is 14 years incarceration. If prosecuted by summary conviction, the maximum penalty is 18 months incarceration.

Minimum Penalties
Offence(s) Crown
Election
Minimum Penalty
First Offence
Minimum Penalty
Subsequent Offence
s. 151 [sexual interference]
From August 9, 2012
Summary Election 90 days custody Same
s. 151 [sexual interference]
From August 9, 2012
Indictable Election 1 year custody Same
s. 151 [sexual interference]
November 10, 2005 to August 8, 2012
Summary Election 14 days custody Same
s. 151 [sexual interference]
November 10, 2005 to August 8, 2012
Indictable Election 45 days custody Same

Offences under s. 151 [sexual interference] have a mandatory minimum penalty of 1 year jail when prosecuted by indictment and 90 day jail when prosecuted by summary conviction.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 151 [sexual interference] any X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 151 [sexual interference] have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

Consecutive Sentences

Under s. 718.3(7), where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence must be consecutive where:

  • one of the sexual offences against that child is an offence relating to child pornography under s. 163.1. (see s. 718.3(7)(a)); or
  • each of the sexual offences against a child, other than a child pornography offence, related to a different child. (see s. 718.3(7)(a))

[note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]

Constitutionality

There is some sugestion that the s. 151 mandatory minimums violate s. 9 of the Charter but are saved by s. 1.[1] Other courts have found the mandatory minimum of 1 year jail to be "cruel and unusual punishment" under the Charter.[2]

The minimum in s. 151(b) does not violate s. 15 of the Charter.[3]

  1. R v Lonegren, 2009 BCSC 1678 (CanLII), per Barrow J and 2010 BCSC 960 (CanLII), per Barrow J
  2. R v Ford, 2017 ABQB 322 (CanLII), per Veit J (section 151(1)(a))
    R v Hussein, 2017 ONSC 4202 (CanLII), per Code J (section 151(1)(a))
    R v BJT, 2016 ONSC 6616(*no CanLII links) (section 151(1)(a))
    R v P(SJ), 2016 NSPC 50 (CanLII), per Ross J - s 151(1)(a)
    R v Hood, 2018 NSCA 18 (CanLII), per MacDonald CJ and Beveridge JA (s. 151(1)(a))
    R v Scofield, 2019 BCCA 3(*no CanLII links) , per Harris JA (Fisher JA dissenting)
    cf. R v EJB, 2018 ABCA 239 (CanLII), per McDonald JA, at para 73
  3. R v TMB, 2013 ONSC 4019 (CanLII), per Code J

Principles

The sexual interference is a "serious violation of the physical and sexual integrity of the child" and has forseeably causes "serious psychological or emotional harm."[1]

Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years,... shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).

Factors

Section 718.2(a)(ii.1) requires that the judge treat as aggravating any "evidence that the offender, in committing the offence, abused a person under the age of eighteen years".

It is an aggravating factor for the offender to have been in a position of trust. A position of trust is distinctive from a position of authority and will be determined on the specific facts including the conduct of the offender.[2]

  1. R v Hajar, 2016 ABCA 222 (CanLII), per Paperny, Watson and Fraser JJA
  2. R v Audet, 1996 CanLII 198 (SCC), [1996] 2 SCR 171, per La Forest J

Ranges

see also: Sexual Interference (Sentencing Cases)
Ontario

Unless there are exceptional circumstances, the range of sentence for sexual intercourse with a child by a person in a position of trust is 3 to 5 years.[1]

However, the upper end of the range can go beyond 5 years.[2]

Manitoba

In Manitoba, the starting point for sexual interference is 4 to 5 years where a major sexual assault occurs, including vaginal/anal intercourse, fellatio, or cunnilingus, on a child where the offender is in a position of trust.[3]

Alberta

There is a starting point for serious sexual interference of 3 years.[4]

  1. R v WWM, [2006] OJ No 440, 2006 CanLII 3262 (ON CA), per Juriansz J, at para 14
  2. R v Mullings, 2012 ONCA 911 (CanLII), per curiam
  3. R v RJ, 2017 MBCA 13 (CanLII), per Mainella JA, at para 17
    R v Sidwell (KA), 2015 MBCA 56 (CanLII), per Steel JA, at para 49
  4. R v Hajar, 2016 ABCA 222 (CanLII), per Paperny, Watson and Fraser JJA, at paras 63 to 68

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
Weapons Prohibition Orders s. 151 [sexual interference]
  • On conviction under s. 151 [sexual interference] where "violence against a person was used, threatened or attempted", and was prosecuted by indictment, punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a).
DNA Orders s. 151 [sexual interference]
SOIRA Orders s. 151 [sexual interference]
  • On conviction under s. 151 [sexual interference], as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years where the offence has been "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years" (s. 490.013(2)(a))) or 20 years where the offence has a "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b)).
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order), 10 years (if 20 year order), or 20 year (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Section 161 Orders s. 151 [sexual interference]
  • If convicted under s. 151 [sexual interference], the judge may make discretionary 161 Order.
Delayed Parole Order s. 151 [sexual interference]
  • Periods of imprisonment of 2 years or more for convictions under s. 151 [sexual interference] are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 151 [sexual interference] are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. Exception is made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference is less than 5 years.

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also

History of Sexual Interference

History

2015 to present

On July 17, 2015, the Tougher Penalties for Child Predators Act (Bill C-26) came into force resulting in an increase of the maximum penalties. The maximum for summary election offences increased from 18 months to 2 years less a day. The maximum for indictable election offences increased from 10 years to 14 years.

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.

R.S., 1985, c. C-46, s. 151; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 3; 2008, c. 6, s. 54; 2012, c. 1, s. 11; 2015, c. 23, s. 2.

CCC

Changes from 2015 are underlined.

2012 to 2015

On August 9, 2012, the section was amended to increase the penalties from 45 days for indictable and 14 days for summary to one year and 90 days respectively.

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 10 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 18 months and to a minimum punishment of imprisonment for a term of 90 days.

R.S., 1985, c. C-46, s. 151; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 3; 2008, c. 6, s. 54; 2012, c. 1, s. 11.

CCC

Changes from 2012 are underlined.

2008 to 2012

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.

R.S., 1985, c. C-46, s. 151; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 3; 2008, c. 6, s. 54.

CCC

Changes from 2008 are underlined.

2005 to 2008

The new changes to s. 151 creates minimum penalties and increases the maximum summary election penalties but decreased maximum penalties for indictable election.

The amendment came into force on November 1, 2005.

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 fourteen 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.

R.S., 1985, c. C-46, s. 151; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 3.

CCC

Changes from 2005 are underlined.

1985 to 2005

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 fourteen years 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. C-46, s. 151; R.S., 1985, c. 19 (3rd Supp.), s. 1.

CCC

Pre-1985

Prior to the 1985 consolidation. The applicable provision was found in s. 140.

Invitation to Sexual Touching


Invitation to Sexual Touching
s. 152 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum 90 days incarceration
Maximum 2 years less a day incarceration
Indictable Dispositions
Avail. Disp. same as summary
Minimum 1 year incarceration
Maximum 14 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to invitation to sexual touching are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 152 [invitation to sexual touching] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) OK Symbol.png (14 years max)

Offences under s. 152 [invitation to sexual touching] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 152 [invitation to sexual touching] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 152 [invitation to sexual touching] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 152 [invitation to sexual touching] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Section s. 152 [invitation to sexual touching] offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 152 [invitation to sexual touching] X Mark Symbol.png OK Symbol.png (primary) OK Symbol.png (varies) X Mark Symbol.png

Section s. 152 [invitation to sexual touching] offences are "primary designated offences" under s. 752 for a Dangerous Offender Order. The offender will be deemed a "substantial risk" for a Long-Term Offender Order under s. 753.1.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

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 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.

R.S., 1985, c. C-46, s. 152; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 3; 2008, c. 6, s. 54; 2012, c. 1, s. 12; 2015, c. 23, s. 3.

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
152 invitation to sexual touching "..., contrary to section 152 of the Criminal Code."

Proof of the Offence

Proving invitation to sexual touching under s. 152 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit communicated with a person
  5. that person was under 16 years of age at the time of communication
  6. knew that the child was under the age of 16
  7. the communication was in a manner constituting an invitation, incitement or counselling[2] to touch any part of the accused's body, the complainant's body, or object
  8. the communication was for a "sexual purpose"
  9. the culprit knew that the communication would be received as an invitation, incitement or counselling to do the physical conduct of the offence, or knew that there was a "substantial and unjustified risk" that the child would receive that communication as being an invitation, incitement or counselling to do that physical conduct. [3]
  1. R v DLW, 2013 BCSC 1327 (CanLII), per Romilly J, at para 235
  2. R v Legare, 2008 ABCA 138 (CanLII), [2008] AJ No 373, at paras 33 and 37 - appealed to 2009 SCC 56 (CanLII), per Fish J
  3. Legare, ibid., at para 41


Interpretation of the Offence

The offence of invitation to sexual touching is an offence of communication, not assault.[1]

Section 152 should be interpreted "purposively in a manner consistent with the philosophy and rationale underlying Parliament's objectives."[2]

The accused is guilty of the offence by giving a child a tissue containing his ejaculate.[3]

If an accused suggests to a child to touch herself for a sexual purpose, the offence would be made out.[4]

The offence includes "inviting, counseling or inciting of the young person to have sexual contact with either the accused or a third person."[5]

The offence is still made out if the victim is the only person touching.[6]

  1. R v GDG, 2013 MBQB 244 (CanLII), per Mainella J, at para 93
  2. R v Fong, 1994 ABCA 267 (CanLII), (1994), 92 CCC (3d) 171 (Alta. C.A.), per curiam, at p. 172 (CCC)
  3. Fong, ibid.
  4. R v Legare, 2008 ABCA 138 (CanLII), per Watson JA, at para 66 - appealed to 2009 SCC 56 (CanLII), per Fish J
  5. R v Sears, (1990), 58 CCC (3d) 62 (Man. C.A.), 1990 CanLII 10938 (MB CA), per Helper JA, at 64
  6. Sears, ibid. at 5

"Inviting, Counseling or Inciting"

The actus reus requires "positive action" by the accused.[1]

The three means of committing the offence must "either singularly or cumulatively, communicate the request to have the child touch for a sexual purpose".[2]

The communication does not need to be explicit, it can be implied.[3]

Inviting

An invitation can work either way whereby the accused asks for permission to touch the victim, in addition, asking the victim to touch him.[4]

A request by the accused to touch the victim's private parts is an invitation to touch for a sexual purpose.[5]

Actual physical touching or an invitation for physical touching is not necessary. Even an invitation to hold a tissue used by the accused can be sufficient.[6]


Counselling

"Counselling" is defined in s. 22.[7] The definition includes "incite".

Inciting

To "incite" it is sufficient for the accused to in some manner recommend or suggest that the acts take place.[8] Mere "passive acquiescence" is not sufficient.[9]

The phrase "inviting, counselling or inciting" is also found in the offence of Sexual Exploitation (Offence)

  1. R v DLW, 2013 BCSC 1327 (CanLII), per Romilly J, at para 240
  2. R v Rhynes, 2004 PESCAD 15 (CanLII), per McQuaid JA, at para 45
  3. R v Legare, 2008 ABCA 138 (CanLII), per Watson JA, at para 35 - appealed to 2009 SCC 56 (CanLII), per Fish J
  4. R v SG, 2004 CanLII 33213 (ON CA), per curiam
  5. R v Gray, [2004] OJ No 4100 (C.A.)(*no CanLII links)
    R v Phippard, [2005] N.J. No. (P.C.)(*no CanLII links) , at para 10
  6. R v Fong, 1994 ABCA 267 (CanLII), (1994), 92 CCC (3d) 171, per curiam
  7. See Counselling
  8. DLW, supra, at para 240
    R v Rhynes, 2004 PESCTD 30 (CanLII), per Matheson J
  9. Rhynes, ibid.

Direct or Indirect Touching

The actus reus related to the act of "touch[ing], 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".

Indirect touching by the accused includes the ejaculation in a tissue held by the victim.[1]

The language is the same as that found in "sexual exploitation" under s. 153.

Any sort of direction of a child to touch themselves would usually amount to an offence under s. 152.[2] Asking a child to touch her toes while he took pictures of her private area will constitute the actus reus.[3]

  1. R v Fong, 1994 ABCA 267 (CanLII), per curiam
  2. R v Legare, 2008 ABCA 138 (CanLII), per Watson JA, at para 66 - appealed to 2009 SCC 56 (CanLII), per Fish J
  3. R v CMM, 2012 MBQB 141 (CanLII), per Joyal CJ

Mens Rea

Sexual touching is a specific intent offence.[1]

  1. see R v JAB, [2002] O.T.C. 723(*no CanLII links)

"Sexual Purpose"

See also: Sexual Interference (Offence)

The "sexual purpose" of an invitation is determined based on an objective standard in light of all the circumstances. In looking at whether the words used had a sexual purpose, the court "can look to the part of the body that was to be touched, the nature of the contact requested, the situation in which the invitation occurred, including the words used, together with any accompanying gestures and all other circumstances surrounding the conduct."[1]

  1. R v Pellerin, [2011] OJ No 1623 (C.J.)(*no CanLII links)
    R v Chase, 1987 CanLII 23 (SCC), [1987] 2 SCR 293, per McIntyre J

Evidence

Modification of Rules of Evidence

For offences under this section (s. 152):

Limitations on Admissibility of Evidence

For offences under this section (s. 152):

  • prior sexual history of the complainant "is not admissible to support an inference that...by reason of the sexual nature of that activity, the complainant...is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or... is less worthy of belief.": see Evidence of complainant’s sexual activity under s. 276.
  • any "evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.": See reputation evidence under s. 277.
Restrictions on Disclosure

For offences under this section (s. 152 [invitation to sexual touching] ), the Crown cannot disclose any records attracting a "reasonable expectation of privacy" that relate "to a complainant or a witness" unless applied for through the process described in s. 278.2 to 278.91: see s. 276.

Defences

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Offence(s) Victim Notice
of agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 152 [invitation to sexual touching]

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 152 [invitation to sexual touching] ), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles on sentence for sexual offences, see Sexual Offences
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 152 [invitation to sexual touching]
From July 17, 2015
Summary Election 2 years less a day custody
s. 152 [invitation to sexual touching]
From July 17, 2015
Indictable Election 14 years custody
s. 152 [invitation to sexual touching]
November 1, 2005 to July 16, 2015
Summary Election 18 months custody
s. 152 [invitation to sexual touching]
Up to July 16, 2015
Indictable Election 10 years custody
s. 152 [invitation to sexual touching]
Up to October 31, 2005
Summary Election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)

Offences under s. 152 are hybrid. If prosecuted by indictment, the maximum penalty is 14 years incarceration. If prosecuted by summary conviction, the maximum penalty is 18 months jail.

Minimum Penalties
Offence(s) Crown
Election
Minimum Penalty
First Offence
Minimum Penalty
Subsequent Offence
s. 152 [invitation to sexual touching]
August 9, 2012 to July 17, 2015
Summary Election 90 days custody Same
s. 152 [invitation to sexual touching]
August 9, 2012 to July 17, 2015
Indictable Election 1 year custody Same
s. 152 [invitation to sexual touching]
November 1, 2005 to August 8, 2012
Summary Election 14 days custody Same
s. 152 [invitation to sexual touching]
November 1, 2005 to August 8, 2012
Indictable Election 45 days custody Same
s. 152 [invitation to sexual touching]
Until October 31, 2005
Any None Same

Offences under s. 152 [invitation to sexual touching] have a mandatory minimum penalty of 1 year incarceration when prosecuted by indictment and 90 days jail when prosecuted by summary conviction.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 152 [invitation to sexual touching] any X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 152 [invitation to sexual touching] have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

Consecutive Sentences

Under s. 718.3(7), where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence must be consecutive where:

  • one of the sexual offences against that child is an offence relating to child pornography under s. 163.1. (see s. 718.3(7)(a)); or
  • each of the sexual offences against a child, other than a child pornography offence, related to a different child. (see s. 718.3(7)(a))

[note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]

Principles

Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years,... shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).

Factors

Section 718.2(a)(ii.1) requires that the judge treat as aggravating any "evidence that the offender, in committing the offence, abused a person under the age of eighteen years".

Ranges

see also: Invitation to Sexual Touching (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 152 [invitation to sexual touching]
SOIRA Orders s. 152 [invitation to sexual touching]
  • On conviction under s. 152, as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years where the offence has been "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years" (s. 490.013(2)(a))) or 20 years where the offence has a "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b)).
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order), 10 years (if 20 year order), or 20 year (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Section 161 Orders s. 152 [invitation to sexual touching]
  • If convicted under s. 152, the judge may make discretionary 161 Order.
Firearms Prohibition Orders s. 152 [invitation to sexual touching]
  • On conviction under s. 152 where "violence against a person was used, threatened or attempted", and punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a) or where "violence was used, threatened or attempted against" an enumerated party relating to a domestic partnership a weapons prohibition order is mandatory under s. 109(1)(a.1).The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
  • Where there is a conviction under s. 152 for an offence not otherwise referred to in s. 109, where "violence against a person was used, threatened or attempted" or "involves, or the subject-matter of which is a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance", a discretionary prohibition order of any of these items is permitted under s. 110 regardless of Crown election where "it is desirable, in the interests of the safety of the person or of any other person".
      • Duration: The Order is for no more than 10 years starting at release from custody or at sentencing where custody is not ordered. If there is a prior conviction for an offence eligible for a s. 109 Order, the duration must be life. If violence is "used, threatened or attempted against" their past or present intimate partner, a child or parent of the said partner, or a person who resides with the said partner or the offender, the duration can be up to life in duration.
      • If the judge declines to make an Order or not order all the possible terms, "the court shall include in the record a statement of the court's reasons for not doing so." (s. 110(3))
Delayed Parole Order s. 152 [invitation to sexual touching]
  • Periods of imprisonment of 2 years or more for convictions under s. 152 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 152 [invitation to sexual touching] are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. Exception is made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference is less than 5 years.

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

History of Invitation to Sexual Touching

History

See also: List of Criminal Code Amendments and Invitation to Sexual Touching (Offence)

2015 to present

On July 17, 2015, the Tougher Penalties for Child Predators Act (Bill C-26) came into force resulting in an increase of the maximum penalties. The maximum for summary election offences increased from 18 months to 2 years less a day. The maximum for indictable election offences increased from 10 years to 14 years.

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 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.

R.S., 1985, c. C-46, s. 152; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 3; 2008, c. 6, s. 54; 2012, c. 1, s. 12; 2015, c. 23, s. 3.

CCC

Changes from 2015 are underlined.

2012 to 2015

On August 9, 2012, this section was amended to increase the minimum penalties from 14 days for summary and 45 days indictable to 90 days and 1 year, respectively.

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 is liable to imprisonment for a term of not more than 10 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 18 months and to a minimum punishment of imprisonment for a term of 90 days.

R.S., 1985, c. C-46, s. 152; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 3; 2008, c. 6, s. 54; 2012, c. 1, s. 12.

CCC

Changes from 2012 are underlined.

2008 to 2012

On July 20, 2005, s. 152 was amended to read:

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.

R.S., 1985, c. C-46, s. 152; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 3; 2008, c. 6, s. 54.

CCC

Changes from 2008 are underlined.

2005 to 2008

On November 1, 2005, s. 152 was amended to read:

Invitation to sexual touching

152. Every person who, for a sexual purpose, invites, counsels or incites a person under the age of fourteen 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 fourteen 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.

R.S., 1985, c. C-46, s. 152; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 3.

CCC

Changes from 2005 are underlined.

1985 to 2005

From the revision of the Criminal Code until amendments on November 1, 2005, s. 152 stated:

Invitation to sexual touching

152. Every person who, for a sexual purpose, invites, counsels or incites a person under the age of fourteen 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 fourteen years, 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. C-46, s. 152; R.S., 1985, c. 19 (3rd Supp.), s. 1.

CCC

Sexual Exploitation


Sexual Exploitation
s. 153 and 153.1 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))*
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum 90 days incarceration (153)
Maximum 18 months incarceration (2 years less a day)
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))*
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum 1 year incarceration (153)
Maximum 2, 14 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to sexual exploitation are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 153 [sexual exploitation] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) OK Symbol.png (14 years max)
s. 153.1 [sexual exploitation of person with disability] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 153 [sexual exploitation] and 153.1 [sexual exploitation of person with disability] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 153 [sexual exploitation]
s. 153.1 [sexual exploitation of person with disability]
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 153 [sexual exploitation] or s. 153.1 [sexual exploitation of person with disability], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 153 [sexual exploitation] and 153.1 [sexual exploitation of person with disability] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Section s. 153 [sexual exploitation] and 153.1 [sexual exploitation of person with disability] offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 153 [sexual exploitation] X Mark Symbol.png OK Symbol.png (primary) OK Symbol.png X Mark Symbol.png
s. 153.1 [sexual exploitation of person with disability] X Mark Symbol.png OK Symbol.png X Mark Symbol.png X Mark Symbol.png

Section s. 153 [sexual exploitation] offences are "primary designated offences" under s. 752 for a Dangerous Offender Order. The offender will be deemed a "substantial risk" for a Long-Term Offender Order under s. 753.1.

Offences under s. 153.1 [sexual exploitation of person with disability] are "designated" offences under s. 752 for dangerous offender applications.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

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.
Punishment

(1.1) Every person who commits an offence under subsection (1) [sexual exploitation]

(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.

...
R.S., 1985, c. C-46, s. 153; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 4; 2008, c. 6, s. 54; 2012, c. 1, s. 13; 2015, c. 23, s. 4.
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.


Sexual exploitation of person with 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.


...
1998, c. 9, s. 2; 2018, c. 29, s. 10; 2019, c. 25, s. 52.

CCC

Proof of the Offence

Proving sexual exploitation by sexual touching under s. 153(1)(a) should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit engaged in prohibited sexual conduct:
    1. the culprit touches something
    2. the touching was of the complainant direct or indirectly
    3. the touching was for a sexual purpose
  5. the complainant was a "young person" (between 16 and 17 years old) at the time of the accused's conduct
  6. the culprit was in a position of trust or authority with respect to the complainant, the complainant was dependent upon the accused, or the complainant was in an exploitative relationship at the time of the accused's conduct

Proving sexual exploitation by invitation to sexual touching under s. 153(1)(b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit engaged in prohibited sexual conduct:
    1. the culprit "invites, counsels or incites" the complainant to touch something;
    2. the act of touching with "a part of the body or with an object";
    3. the target of the touch was "the body of any person";
    4. the conduct was for a sexual purpose
  5. the complainant was a "young person" (between 16 and 17 years old) at the time of the accused's conduct
  6. the culprit was in a position of trust or authority with respect to the complainant, the complainant was dependent upon the accused, or the complainant was in an exploitative relationship at the time of the accused's conduct

Proving sexual exploitation of a person with disability under s. 153.1(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit is in "a position of trust or authority towards" the complainant or the complainant has "a relationship of dependency" with the accused;
  5. the complainant has "a mental or physical disability" ;
  6. the prohibited conduct is "for a sexual purpose";
  7. the culprit "counsels or incites" the complainant to touch something;
  8. the complainant did not consent to the touching;
  9. the target of touching is the complainant's "own body", the body of the accused, or a third party, directly or indirectly; and
  10. the act of touching was "with a part of the body or with an object"
  1. R v Aird, 2013 ONCA 447 (CanLII), per Laskin JA, at para 25

Interpretation of the Offence

Purpose

Ther purpose of s. 153 is to "make it clear that a person in a position of authority or trust towards a young person is not to engage in sexual activity with that person, even though there is apparent consent".[1] It also to "protect children" [2] given their "position of vulnerability and weakness".[3]

Two Forms of Sexual Exploitation

Section 153(1)(a) is an offence of "sexual exploitation by sexual touching" and s. 153(1)(b) is an offence of "sexual exploitation by invitation to sexual touching".[4]

Mens Rea

The mens rea consists of:[5]

  1. knowingly communicating with a child for a sexual purpose; and
  2. the intention that the communication be received as an invitation, etc. to physical contact, or knowledge that there was a substantial and unjustified risk the child would receive the communication as an invitation, etc. to physical contact.
  1. R v TGF, (1992), 55 O.A.C. 355 (C.A.)(*no CanLII links)
    R v GB, 2009 BCCA 88 (CanLII), per Kirkpatrick JA, at para 27
  2. R v Hann, 1992 CanLII 7133 (NL CA), (1992), 75 CCC (3d) 355 (N.L.C.A.), per Marshall JA ("...our society for generations has dictated that persons of tender and youthful years require the protection from laws which assures that no excuse based upon the consent of a vulnerable mind can justify sexual invasions of their persons by adults.")
  3. R v Audet, 1996 CanLII 198 (SCC), [1996] 2 SCR 171, per La Forest J, at paras 23, 36
  4. R v King, 2012 ABQB 57 (CanLII), per Burrows J
  5. R v Careen, 2013 BCCA 535 (CanLII), per Frankel JA, at para 22

"Young Person"

Under s. 153(2), "young person" for this offence means "a person 16 years of age or more but under the age of eighteen years."

"Invites, Counsels or Incites"

The phrase "invites, counsels or incites" adopts the same interpretation from Invitation to Sexual Touching (Offence).

Direct or Indirect Touching

Touching under s. 153(1)(a) requires that the accused "touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person".

While touching under s. 153(1)(b) requires a "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" The phrase under s. 153 adopts the same interpretation from Invitation to Sexual Touching (Offence).

Position of Trust or Authority

"Trust" should be "interpreted in accordance with its primary meaning: ‘[c]onfidence in or reliance on some quality or attribute of a person or thing, or the truth of a statement.’” [1]

Where the accused runs the operation that employs the complainant and is physically larger than the complainant is not sufficient on its own to establish a position of trust or authority over the complainant. [2]

A teacher will often be found to be in a position of trust.[3] When considering this issue, the judge should look at the age discrepancy between the victim and accused, and the evolution of their relationship.[4]

Factors to consider include:[5]

  1. The age difference between the accused and the young person;
  2. The evolution of their relationship;
  3. The status of the accused in relation to the young person;
  4. The degree of control, influence or persuasiveness exercised by the accused over the young person; and
  5. The expectations of the parties affected, including the accused, the young person and the young person’s parents.
"Relationship of Dependency"

Determination of whether there existed a "relationship of dependency" will depend on the entirety of the circumstances.[6]

  1. R v Audet, 1996 CanLII 198 (SCC), [1996] 2 SCR 171, per La Forest J, at para 35
  2. R v Caskenette, 1993 CanLII 6879 (BC CA), (1993), 80 CCC (3d) 439, per Hollinrake JA - Accused testified that he was not regularly on the work site
  3. R v McLachlan, 2012 SKCA 74 (CanLII), per Richards JA - suggests absent exceptional circumstances they will be persons in authority R v VK, [2001] OJ No 2317(*no CanLII links) - music tutor found to be in position of authority
  4. VK, supra
  5. R v Aird, 2013 ONCA 447 (CanLII), per Laskin JA, at para 28
    Audet, supra
  6. R v Galbraith (1994), 1994 CanLII 215 (ON CA), 90 CCC (3d) 76 (Ont. C.A.), per Finalyson JA, at para 18
    R v Blackmore, 2017 BCSC 192 (CanLII), per Pearlman J, at para 187

"For a Sexual Purpose"

It is not necessary for the Crown to prove that the accused touched the victim for his own sexual gratification.[1]

Language "for a sexual purpose" is also found in Sexual Interference (Offence).

  1. R v GB, 2009 BCCA 88 (CanLII), per Kirkpatrick JA, at paras 27 to 29

Sexual Exploitation

There is no requirement that the Crown prove that the accused actually exploited the relationship in the course of the impugned conduct.[1]

The meaning of "exploitive relationship" is largely determined by the scope of the other types of relationships set for in ss. (1.2).[2]

Of some use is the definition of "exploitive" from Black’s Law Dictionary 8th ed. which defines it as "the act of taking unfair advantage of another for one’s own benefit."[3]

The key factor to "exploitation" is the presence of a power imbalance.[4]

153.
...

Inference of sexual exploitation

(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.

(2) In this section, young person means a person 16 years of age or more but under the age of eighteen years.

R.S., 1985, c. C-46, s. 153; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 4; 2008, c. 6, s. 54; 2012, c. 1, s. 13; 2015, c. 23, s. 4.

CCC

There is some suggestion that the "exploitive relationship" can occur by way of grooming over the internet.[5]

It has been suggested that signs of exploitation include:[6]

  • power imbalance or authoritative position;
  • violence or threats of violence
  • coercion
  • exercise of physical or psychological control or domination over the victim

The existence of some quid pro quo between the parties does not negate any exploitive relationship. It is hard to image where an exchange will not take place.[7]

  1. see R v Audet. [1996] 2 SCR 171, 1996 CanLII 198 (SCC), per La Forest J, at paras 17 to 18
    R v SJB, 2018 MBCA 62 (CanLII), per Mainella JA, at para 18
  2. R v Anderson, 2009 PECA 4 (CanLII), per McQuaid JA, at para 67
  3. Anderson, supra, at para 68
  4. R v Damaso, 2013 ABCA 79 (CanLII), per curiam, at paras 29 to 30
  5. R v Woodward, 2011 ONCA 610 (CanLII), per Moldaver JA, at paras 40 to 42 - in reference to a sentencing for luring
  6. R v G(C), 1994 CanLII 215 (ON CA), (1994), 90 CCC (3d) 76, per Finlayson JA, at para 15
  7. R v Beckers, 2012 ONSC 6709 (CanLII), per Hourigan J, at para 128

Consent in Relation to Young Persons

Consent is not defence against an allegation under s. 153.[1]

  1. see s. 150.1
    R v Audet, 1996 CanLII 198 (SCC), [1996] 2 SCR 171, per La Forest J, at para 19
    R v Barabash, 2015 SCC 29 (CanLII), per Karakatsanis J, at para 35

Consent in Relation to Person with Disability

See also: Consent in Sexual Offences

153.1. ...

Definition of “consent”

(2) Subject to subsection (3) [sexual exploitation of person with disability – no consent], “consent” means, for the purposes of this section, the voluntary agreement of the complainant to engage in the sexual activity in question.

Consent

(2.1) Consent must be present at the time the sexual activity in question takes place.

Question of law

(2.2) The question of whether no consent is obtained under subsection (3) [sexual exploitation of person with disability – no consent] or (4) [sexual exploitation of person with disability – no limitations on consent] or 265(3) [where consent is deemed unavailable in common assault] is a question of law.

When no consent obtained

(3) For the purposes of this section, no consent is obtained if

(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(a.1) the complainant is unconscious;
(b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1);
(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 continue to engage in the activity.
Subsection (3) not limiting

(4) Nothing in subsection (3) [sexual exploitation of person with disability – no consent] shall be construed as limiting the circumstances in which no consent is obtained.

When belief in consent not a defence

(5) It is not a defence to a charge under this section that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge if

(a) the accused’s belief arose from
(i) the accused’s self-induced intoxication,
(ii) the accused’s recklessness or wilful blindness, or
(iii) any circumstance referred to in subsection (3) [sexual exploitation of person with disability – no consent] or (4) [sexual exploitation of person with disability – no limitations on consent] or 265(3) [where consent is deemed unavailable in common assault] in which no consent is obtained;
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or
(c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.
Accused’s belief as to consent

(6) If an accused alleges that he or she believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
1998, c. 9, s. 2; 2018, c. 29, s. 10; 2019, c. 25, s. 52.
[annotation(s) added]

CCC

Evidence

Modification of Rules of Evidence

For offences under this section (s. 153 and 153.1):

Limitations on Admissibility of Evidence

For offences under this section (s. 153 and 153.1):

  • prior sexual history of the complainant "is not admissible to support an inference that...by reason of the sexual nature of that activity, the complainant...is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or... is less worthy of belief.": see Evidence of complainant’s sexual activity under s. 276.
  • any "evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.": See reputation evidence under s. 277.
Restrictions on Disclosure

For offences under this section (s. 153 and 153.1), the Crown cannot disclose any records attracting a "reasonable expectation of privacy" that relate "to a complainant or a witness" unless applied for through the process described in s. 278.2 to 278.91: see s. 276.

Included Offences

Sexual assault is not an included offence. Exploitation is a specific intent offence and involves more subjective proof than sexual assault.[1]

  1. R v Nelson (1989), 51 CCC (3d) 150(*no CanLII links) , per Philp J (Ont. H.C.)

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Offence(s) Inquiry of Notice re. Impact Statment Inquiry of Notice of Agreement Inquiry of Notice re. Restitution
s. 153.1 OK Symbol.png OK Symbol.png OK Symbol.png

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 153.1), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles on sentence for sexual offences, see Sexual Offences
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 153 [sexual exploitation]
From July 17, 2015
Summary Election 2 years less a day custody
s. 153 [sexual exploitation]
November 1, 2005 to July 16, 2015
Summary Election 18 months custody
s. 153 [sexual exploitation]
Until October 31, 2005
Summary Election 6 months custody and/or $5,000
s. 153 [sexual exploitation]
From July 17, 2015
Indictable Election 14 years custody
s. 153 [sexual exploitation]
November 1, 2005 to July 16, 2015
Indictable Election 10 years custody
s. 153 [sexual exploitation]
Until October 31, 2005
Indictable Election 5 years custody
s. 153.1 [sexual exploitation of a person with disability] Summary Election 18 months custody
s. 153.1 [sexual exploitation of a person with disability] Indictable Election 2 years custody

Offences under s. 153 and 153.1 are hybrid. If prosecuted by indictment, the maximum penalty is 14 years incarceration under s. 153 or 2 years incarceration under s. 153.1. If prosecuted by summary conviction, the maximum penalty is 2 years less a day under s. 153 or 18 months incarceration under s. 153.1.

Minimum Penalties
Offence(s) Crown
Election
Minimum Penalty
First Offence
Minimum Penalty
Subsequent Offence
s. 153 [sexual exploitation]
From August 9, 2012
Summary Election 90 days custody Same
s. 153 [sexual exploitation]
November 1, 2005 to August 8, 2012
Summary Election 14 days custody Same
s. 153 [sexual exploitation]
From August 9, 2012
Indictable Election 1 year custody Same
s. 153 [sexual exploitation]
November 1, 2005 to August 8, 2012
Indictable Election 45 days custody Same

Offences under s. 153 have a mandatory minimum penalty of 1 year incarceration when prosecuted by indictment and 90 days incarceration when prosecuted by summary conviction.

Offences under s. 153.1 have no mandatory minimum penalties.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 153, 153.1 any X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 153 and 153.1 have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

Consecutive Sentences

Under s. 718.3(7), where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence must be consecutive where:

  • one of the sexual offences against that child is an offence relating to child pornography under s. 163.1. (see s. 718.3(7)(a)); or
  • each of the sexual offences against a child, other than a child pornography offence, related to a different child. (see s. 718.3(7)(a))

[note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]

Constitutionality of Mandatory Minimums

In some jurisdictions, the mandatory minimum of 1 year found in s. 153(1.1) has been found to be unconstitutional under s. 12 of the Charter for being "cruel and unusual punishment".[1]

  1. R v EJB, 2017 ABQB 726 (CanLII), per Horner J
    R v Hood, 2018 NSCA 18 (CanLII), per MacDonald CJNS and Beveridge JA - re section 153(1.1)(a)
    R v EO, 2019 YKCA 9 (CanLII)(complete citation pending), per Bennett JA

Principles

Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years,... shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).

Actual Exploitation of Relationship

The presence of actual exploitation is not an essential element to the offence, however, its presence is an aggravating factor to sentence. Its absence however is not mitigating.[1]

Extended and Repeated Exploitation

The proof of extended periods of exploitation, as opposed to a momentary loss of control, will be treated as aggravating.[2]

Repeated activities cannot be seen as mere "acts of opportunity" that have mitigating value.[3]

  1. R v SJB, 2018 MBCA 62 (CanLII), per Mainella JA, at para 18
  2. SJB, ibid., at para 29
  3. SJB, ibid., at paras 27 to 30

Ranges

see also: Sexual Exploitation (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 153 or 153.1
SOIRA Orders s. 153 or 153.1
  • On conviction under s. 153, as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years where the offence has been "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years" (s. 490.013(2)(a))) or 20 years where the offence has a "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b)).
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order), 10 years (if 20 year order), or 20 year (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

  • On conviction under s. 153.1, as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years as the offence was "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years".
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order) or 20 years (if life order)

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Section 161 Orders s. 153
  • If convicted under s. 153, the judge may make discretionary 161 Order.
Weapons Prohibition Orders s. 153 or 153.1
  • On conviction under s. 153 where "violence against a person was used, threatened or attempted", and punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a) or where "violence was used, threatened or attempted against" an enumerated party relating to a domestic partnership a weapons prohibition order is mandatory under s. 109(1)(a.1).The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
  • Where there is a conviction under s. 153.1 for an offence not otherwise referred to in s. 109, where "violence against a person was used, threatened or attempted" or "involves, or the subject-matter of which is a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance", a discretionary prohibition order of any of these items is permitted under s. 110 regardless of Crown election where "it is desirable, in the interests of the safety of the person or of any other person".
      • Duration: The Order is for no more than 10 years starting at release from custody or at sentencing where custody is not ordered. If there is a prior conviction for an offence eligible for a s. 109 Order, the duration must be life. If violence is "used, threatened or attempted against" their past or present intimate partner, a child or parent of the said partner, or a person who resides with the said partner or the offender, the duration can be up to life in duration.
      • If the judge declines to make an Order or not order all the possible terms, "the court shall include in the record a statement of the court's reasons for not doing so." (s. 110(3))
Delayed Parole Order s. 153 or 153.1
  • Periods of imprisonment of 2 years or more for convictions under s. 153 or 153.1 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 153 [sexual exploitation] and 153.1 [sexual exploitation of person with disability] are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. Exception is made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference is less than 5 years.

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also

References

History of Sexual Exploitation

History

See also: List of Criminal Code Amendments and Sexual Exploitation (Offence)

Section 153 was added to the Criminal Code in response to the Badgley Committee's Report (1984)[1]

  1. referenced in R v Audet, 1996 CanLII 198 (SCC), (1996), 106 CCC (3d) 481, per La Forest J

2015 to present

On July 17, 2015, the Tougher Penalties for Child Predators Act (Bill C-26) came into force resulting in an increase of the maximum penalties. The maximum for summary election offences increased from 18 months to 2 years less a day. The maximum for indictable election offences increased from 10 years to 14 years.

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.
Punishment

(1.1) Every person who commits an offence under subsection (1)

(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.
Inference of sexual exploitation

(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.
Definition of “young person”

(2) In this section, young person means a person 16 years of age or more but under the age of eighteen years.
R.S., 1985, c. C-46, s. 153; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 4; 2008, c. 6, s. 54; 2012, c. 1, s. 13; 2015, c. 23, s. 4.

CCC

Changes from 2015 are underlined.

2012 to 2015

On August 9, 2012, this section was amended to increase the minimum penalties from 14 days for summary and 45 days indictable to 90 days and 1 year, respectively.

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.
Punishment

(1.1) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 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 18 months and to a minimum punishment of imprisonment for a term of 90 days.
Inference of sexual exploitation

(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.
Definition of “young person”

(2) In this section, “young person” means a person 16 years of age or more but under the age of eighteen years.

R.S., 1985, c. C-46, s. 153; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 4; 2008, c. 6, s. 54; 2012, c. 1, s. 13.

CCC

Changes from 2012 are underlined.

2008 to 2012

In 2008, "Tackling Violent Crime Act, S.C. 2008, c. 6" added s. 153(2). It came into force May 1, 2008.

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.
Punishment

(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.
Inference of sexual exploitation

(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.
Definition of “young person”

(2) In this section, “young person” means a person 16 years of age or more but under the age of eighteen years.

R.S., 1985, c. C-46, s. 153; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 4; 2008, c. 6, s. 54.

CCC

Changes from 2008 are underlined.

2005 to 2008

On November 1, 2005 , parts of "An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32" came into force amending s. 153 to read:

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.

Punishment

(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.
Inference of sexual exploitation

(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.

Definition of “young person”

(2) In this section, “young person” means a person fourteen years of age or more but under the age of eighteen years.

R.S., 1985, c. C-46, s. 153; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 4.

CCC

Changes from 2005 are underlined.

1985 to 2005

Sexual exploitation

153. (1) Every person who is in a position of trust or authority towards a young person or is a person with whom the young person is in a relationship of dependency 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,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction.

Definition of “young person”

(2) In this section, “young person” means a person fourteen years of age or more but under the age of eighteen years.
R.S., 1985, c. C-46, s. 153; R.S., 1985, c. 19 (3rd Supp.), s. 1.

CCC

Incest


Incest
s. 155 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Judicial Release Only
Indictable Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))*
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)

(* varies)
Minimum 5 years incarceration (if under 16 yrs)
Maximum 14 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to incest are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 155 [incest] Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (14 years max)

Offences under s. 155 [incest] are straight indictable. There is a Defence election of Court under s. 536(2).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 155 [incest] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 155 [incest], the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 155 [incest] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

Section s. 155 [incest] offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 155 [incest] X Mark Symbol.png OK Symbol.png (Primary) OK Symbol.png X Mark Symbol.png

Section s. 155 [incest] offences are "primary designated offences" under s. 752 for a Dangerous Offender Order. The offender will be deemed a "substantial risk" for a Long-Term Offender Order under s. 753.1.

Offences under s. 155 [incest] are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

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.

Punishment

(2) Everyone who commits incest is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and, if the other person is under the age of 16 years, to a minimum punishment of imprisonment for a term of five years.

Defence

(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.

[omitted (4)]
R.S., 1985, c. C-46, s. 155; R.S., 1985, c. 27 (1st Supp.), s. 21; 2012, c. 1, s. 14.

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving incest under s. 155 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit has "sexual intercourse" with a person;
  5. the culprit was aware that the person "is by blood relationship his or her parent, child, brother, sister, grandparent or grandchild"

Interpretation of the Offence

Purpose of the Offence

The primary intent of parliament in creating this offence was to "prevent genetic mutations that can result from inbreeding".[1]

A secondary purpose for the creation of the offence is the "protection of vulnerable members of the family".[2]

"Brother" and "sister"

155
[omitted (1), (2) and (3)]

Definition of “brother” and “sister”

(4) In this section, “brother” and “sister”, respectively, include half-brother and half-sister.

R.S., 1985, c. C-46, s. 155; R.S., 1985, c. 27 (1st Supp.), s. 21; 2012, c. 1, s. 14.

CCC

  1. R v KH, ONSC 7760 (CanLII), per Barnes J
  2. KH, ibid. ("The defence argument falls apart when considered in the context of the second legislative intent, which is the protection of vulnerable members of the family")

Sexual Intercourse

Under s. 4(5), "sexual intercourse is complete on penetration to even the slightest degree, notwithstanding that seed is not emitted."[1] "Sexual intercourse" in this context is not limited to vagina intercourse and can include anal intercourse as well.[2]

  1. R.S., 1985, c. C-46, s. 4; R.S., 1985, c. 27 (1st Supp.), s. 3; 1994, c. 44, s. 3; 1997, c. 18, s. 2; 2008, c. 18, s. 1; 2014, c. 31, s. 2.
    see as well use of s. 4(5) in Procuring and Living on the Avails of Prostitution (Repealed Offence)
  2. R v KH, ONSC 7760 (CanLII), per Barnes J

Evidence

Modification of Rules of Evidence

For offences under this section (s. 155):

Limitations on Admissibility of Evidence

For offences under this section (s. 155):

  • prior sexual history of the complainant "is not admissible to support an inference that...by reason of the sexual nature of that activity, the complainant...is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or... is less worthy of belief.": see Evidence of complainant’s sexual activity under s. 276.
  • any "evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.": See reputation evidence under s. 277.
Restrictions on Disclosure

For offences under this section (s. 155), the Crown cannot disclose any records attracting a "reasonable expectation of privacy" that relate "to a complainant or a witness" unless applied for through the process described in s. 278.2 to 278.91: see s. 276.

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles on sentence for sexual offences, see Sexual Offences
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 155 [incest] N/A 14 years incarceration

Offences under s. 155 [incest] are straight indictable. The maximum penalty is 14 years incarceration.

Minimum Penalties
Offence(s) Crown
Election
Minimum Penalty
First Offence
Minimum Penalty
Subsequent Offence
s. 155 [incest]
Victim Under 16 years
N/A 5 years incarceration Same

If the other person is under the age of 16 years, the minimum penalty is 5 years incarceration.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 155 [incest] N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 155 [incest]
Victim Under Age of 16
N/A X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

If convicted under s. 155 [incest] a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".

Offences under s. 155 [incest] are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Offences under s. 155 [when victim under the age of 16] have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

Consecutive Sentences

Under s. 718.3(7), where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence must be consecutive where:

  • one of the sexual offences against that child is an offence relating to child pornography under s. 163.1. (see s. 718.3(7)(a)); or
  • each of the sexual offences against a child, other than a child pornography offence, related to a different child. (see s. 718.3(7)(a))

[note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]

Principles

Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years,... shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).

Ranges

see also: Incest (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 155 [incest]
SOIRA Orders s. 155 [incest]
  • On conviction under s. 155, as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 20 years as the offence has "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b))).
      • There is an option for early termination under s. 490.015 available after 10 years (if 20 year order) or 20 years (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Section 161 Orders s. 155 [incest]
  • If convicted under s. 155, the judge may make discretionary 161 Order.
Firearms Prohibition Orders s. 155 [incest]
  • Where there is a conviction under s. 155 for an offence not otherwise referred to in s. 109, where "violence against a person was used, threatened or attempted" or "involves, or the subject-matter of which is a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance", a discretionary prohibition order of any of these items is permitted under s. 110 regardless of Crown election where "it is desirable, in the interests of the safety of the person or of any other person".
      • Duration: The Order is for no more than 10 years starting at release from custody or at sentencing where custody is not ordered. If there is a prior conviction for an offence eligible for a s. 109 Order, the duration must be life. If violence is "used, threatened or attempted against" their past or present intimate partner, a child or parent of the said partner, or a person who resides with the said partner or the offender, the duration can be up to life in duration.
      • If the judge declines to make an Order or not order all the possible terms, "the court shall include in the record a statement of the court's reasons for not doing so." (s. 110(3))
Delayed Parole Order s. 155 [incest]
  • Periods of imprisonment of 2 years or more for convictions under s. 155 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.


Record Suspensions and Pardons

Convictions under s. 155 [incest] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

1985 to 2012

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.

Punishment

(2) Every one who commits incest is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Defence

(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.
Definition of “brother” and “sister”
(4) In this section, “brother” and “sister”, respectively, include half-brother and half-sister.
R.S., 1985, c. C-46, s. 155; R.S., 1985, c. 27 (1st Supp.), s. 21.

CCC

See Also

References

Bestiality


Bestiality
s. 160(1), (2) and (3) of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))*
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum 6 months incarceration (* varies)
Maximum 2 years less a day or two years less a day jail and/or a $5,000 fine (from Sept 19, 2019) incarceration
Indictable Dispositions
Avail. Disp. same as summary
Minimum 1 year incarceration (* varies)
Maximum 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to bestiality are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 160(1) [bestiality]
s. 160(2) [compelling bestiality]
s. 160(3) [bestiality in presence of child]
Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 160(1) [bestiality], (2) [compelling bestiality] and (3) [bestiality in presence of child] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 160(1) [bestiality], (2) [compelling bestiality] and (3) [bestiality in presence of child] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 160(1) [bestiality], (2) [compelling bestiality] and (3) [bestiality in presence of child], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 160 [bestiality] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Section s. 160 [bestiality] offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 160 [bestiality] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

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.

Compelling the commission of bestiality

(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.

Bestiality in presence of or by child

(3) Despite subsection (1) [bestiality], every person who commits bestiality in the presence of a person under the age of 16 years, or who incites a person under the age of 16 years to commit bestiality,

(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 six months.

[omitted (4) and (5)]

Application

(6) Sections 740 to 741.2 [provisions relating to restitution] apply, with any modifications that the circumstances require, to orders made under paragraph (4)(b) [order of payment for animal care fees].

Definition of bestiality

(7) In this section, "bestiality" means any contact, for a sexual purpose, with an animal.

R.S., 1985, c. C-46, s. 160; R.S., 1985, c. 19 (3rd Supp.), s. 3; 2008, c. 6, s. 54; 2012, c. 1, s. 15; 2015, c. 23, s. 5; 2019, c. 17, s. 1.
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XX of the Criminal Code.

Proof of the Offence

Proving bestiality under s. 160(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit performs vaginal or anal intercourse with an animal

Proving compelling bestiality under s. 160(2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "compels another to" perform vaginal or anal intercourse with an animal

Proving bestiality in presence of a child under s. 160(3) should include:

  1. the culprit commits an offence under s. 160(1) and it was in the presence of person under 16 years; or
  2. the culprit commits an offence under s. 160(2) where the other person was under the age of 16 years.

Interpretation of the Offence

It has not been well established whether the act of bestiality requires that the sexual act be penetrative in nature. The limited cases that have considered it have stated that there must be penetrative sex, either vaginal or anal with an animal. It does not include sexual acts involving genital touching or oral sex.[1] However, courts have accepted guilty pleas for bestiality for acts that amounted to oral stimulation.[2] More recent consideration has concluded that the offence only concerns intercourse which requires penetration.[3]

There is no requirement that the sexual act occur between an animal and human of the opposite sex.[4]

  1. R v Ruvinsky [1998] OJ No 3621 (*no CanLII links) ("[i]n my respectful opinion, "bestiality" is anal or vaginal intercourse with an animal, by a man or a woman. ... I do not believe that it is my role to expand the definition of this offence to include genital touching or licking. That responsibility lies with Parliament, who in their wisdom, have to date not defined the offence.")
    See also R v MC [2002] JQ No 8055, 2002 CanLII 45200 (QCCQ), per Lortie J
  2. R v LMR, 2010 ABCA 286 (CanLII), per curiam - child had her vagina licked by a dog
    R v Black, 2007 SKPC 46 (CanLII), 296 Sask.R. 289, per Kovatch J - accused recorded a woman having her genitals licked by a dog and stimulated the dog
    R v JJBB, 2007 BCPC 426 (CanLII), per Frame J - offender recorded two dogs licking child's genitals
    R v KDH, 2012 ABQB 471 (CanLII), per Manderscheid J, at paras 181, 182
  3. R v DLW, 2016 SCC 22 (CanLII), per Cromwell J
  4. DLW, ibid. (BCSC), at para 305 appealed to DLW (SCC), ibid.

Evidence

Modification of Rules of Evidence

For offences under this section (s. 160):

Limitations on Admissibility of Evidence

For offences under this section (s. 160(2) and (3)):

  • prior sexual history of the complainant "is not admissible to support an inference that...by reason of the sexual nature of that activity, the complainant...is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or... is less worthy of belief.": see Evidence of complainant’s sexual activity under s. 276.
  • any "evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.": See reputation evidence under s. 277.
Restrictions on Disclosure

For offences under this section (s. 160), the Crown cannot disclose any records attracting a "reasonable expectation of privacy" that relate "to a complainant or a witness" unless applied for through the process described in s. 278.2 to 278.91: see s. 276.

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 160), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles on sentence for sexual offences, see Sexual Offences
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 160(1) [bestiality]
s. 160(2) [compelling bestiality]
Summary Election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 160(3) [[bestiality in presence of child] Summary Election 2 years less a day custody
s. 160(1) [bestiality]
s. 160(2) [compelling bestiality]
s. 160(3) [bestiality in presence of child]
Indictable Election 10 years incarceration

Offences under s. 160(1), (2), and (3) are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019) for s. 160(1) or (2) and 2 years less a day for s. 160(3).

Minimum Penalties
Offence(s) Crown
Election
Minimum Penalty
First Offence
Minimum Penalty
Subsequent Offence
s. 160(3) [bestiality in presence of child] Summary Election 6 months custody Same
s. 160(3) [bestiality in presence of child] Indictable Election 1 year custody Same

Offences under s. 160(1) or (2) have no mandatory minimum penalties.

Offences under s. 160(3) [bestiality in presence of child] have a mandatory minimum penalty of 1 year incarceration when prosecuted by indictment and 6 months jail when prosecuted by summary conviction.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 160(1) [bestiality] and (2) [compelling bestiality] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 160(3) [bestiality in presence of child] any X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

For offences under s. 160(1) [bestiality] and (2) [compelling bestiality] , all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Offences under s. 160(3) [bestiality in presence of child] have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

Consecutive Sentences

Under s. 718.3(7), where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence must be consecutive where:

  • one of the sexual offences against that child is an offence relating to child pornography under s. 163.1. (see s. 718.3(7)(a)); or
  • each of the sexual offences against a child, other than a child pornography offence, related to a different child. (see s. 718.3(7)(a))

[note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]

Principles

Young Victim

Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years,... shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).

Ranges

see also: Bestiality (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders

160
[omitted (1), (2) and (3)]

Order of prohibition or restitution

(4) The court may, in addition to any other sentence that it may impose under any of subsections (1) to (3) [bestiality – various forms],

(a) make an order prohibiting the accused from owning, having the custody or control of or residing in the same premises as an animal during any period that the court considers appropriate but, in the case of a second or subsequent offence, for a minimum of five years; and
(b) on application of the Attorney General or on its own motion, order that the accused pay to a person or an organization that has taken care of an animal as a result of the commission of the offence the reasonable costs that the person or organization incurred in respect of the animal, if the costs are readily ascertainable.
Breach of order

(5) Every person who contravenes an order made under paragraph (4)(a) [animal prohibition order] is guilty of an offence punishable on summary conviction.

[omitted (6) and (7)]

R.S., 1985, c. C-46, s. 160; R.S., 1985, c. 19 (3rd Supp.), s. 3; 2008, c. 6, s. 54; 2012, c. 1, s. 15; 2015, c. 23, s. 5; 2019, c. 17, s. 1.
[annotation(s) added]

CCC

Order Conviction Description
DNA Orders s. 160(2) or (3)
SOIRA Orders s. 160(2) or (3)
  • On conviction under s. 160(2) or (3), as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years where the offence has been "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years" (s. 490.013(2)(a))) or 20 years where the offence has a "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b)).
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order), 10 years (if 20 year order), or 20 year (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Section 161 Orders s. 160(2) or (3)
  • If convicted under s. 160(2) or (3), the judge may make discretionary 161 Order.
Delayed Parole Order s. 160
  • Periods of imprisonment of 2 years or more for convictions under s. 160 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 160(3) [bestiality in the presence of a person under 16 or inciting a person under 16 to commit bestiality] are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. Exception is made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference is less than 5 years.

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also

References

History of Bestiality

History

See also: Bestiality (Offence)

2015 to Present

On July 17, 2015, the Tougher Penalties for Child Predators Act (Bill C-26) came into force resulting in an increase of the maximum penalties for offences under s. 160(3). The maximum for offences under s. 160(3) increased from 10 years to 14 years.

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.

Compelling the commission of bestiality

(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.

Bestiality in presence of or by child

(3) Despite subsection (1), every person who commits bestiality in the presence of a person under the age of 16 years, or who incites a person under the age of 16 years to commit bestiality,

(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 six months.

R.S., 1985, c. C-46, s. 160; R.S., 1985, c. 19 (3rd Supp.), s. 3; 2008, c. 6, s. 54; 2012, c. 1, s. 15; 2015, c. 23, s. 5.
[Changes since last version underlined]

CCC

2012 to 2015

On August 9, 2012, section 160(3) was amended to increase the penalties from a hybrid offence with no minimums to a hybrid offence with minimums of 6 months on summary conviction and 1 year on indictable election. The maximum on the summary election was increased to 2 years less a day.

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.

Compelling the commission of bestiality

(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.

Bestiality in presence of or by child

(3) Despite subsection (1), every person who commits bestiality in the presence of a person under the age of 16 years, or who incites a person under the age of 16 years to commit bestiality,

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 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 six months.

R.S., 1985, c. C-46, s. 160; R.S., 1985, c. 19 (3rd Supp.), s. 3; 2008, c. 6, s. 54; 2012, c. 1, s. 15.

CCC

2008 to 2012

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.

Compelling the commission of bestiality

(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.

Bestiality in presence of or by child

(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. C-46, s. 160; R.S., 1985, c. 19 (3rd Supp.), s. 3; 2008, c. 6, s. 54. [Changes since last version underlined]

CCC

Original 1985 Code Version

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.

Compelling the commission of bestiality

(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.

Bestiality in presence of or by child

(3) Notwithstanding subsection (1), every person who, in the presence of a person under the age of fourteen years, commits bestiality or who incites a person under the age of fourteen 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. C-46, s. 160; R.S., 1985, c. 19 (3rd Supp.), s. 3.

CCC

Until 1987 the offences of bestiality was combined with buggery until it was made separated in An Act to amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, s. 3.[1]

Voyeurism


Voyeurism
s. 162 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to voyeurism are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 162 [voyeurism] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 162 [voyeurism] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 162 [voyeurism] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 162 [voyeurism] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 162 [voyeurism] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Section s. 162 [voyeurism] offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 162 [voyeurism] OK Symbol.png X Mark Symbol.png X Mark Symbol.png (under 10 years max) X Mark Symbol.png

Offences under s. 162 [voyeurism] are designated offences eligible for wiretap under s. 183.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

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.
Definition of “visual recording”

(2) In this section, “visual recording” includes a photographic, film or video recording made by any means.

Exemption

(3) Paragraphs (1)(a) [voyeurism – place where nudity expected] and (b) [voyeurism – victim is nude in private place] do not apply to a peace officer who, under the authority of a warrant issued under section 487.01 [general warrants], is carrying out any activity referred to in those paragraphs.

Printing, publication, etc., of voyeuristic recordings

(4) Every one commits an offence who, knowing that a recording was obtained by the commission of an offence under subsection (1) [voyeurism – forms of offence], 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.

Punishment

(5) Every one who commits an offence under subsection (1) [voyeurism – forms of offence] or (4) [voyeurism – offence for distribution of materials]

(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.
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.

Question of law, motives

(7) For the purposes of subsection (6) [public good defence],

(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
(b) the motives of an accused are irrelevant.


R.S., 1985, c. C-46, s. 162; R.S., 1985, c. 19 (3rd Supp.), s. 4; 2005, c. 32, s. 6.
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
162(1)(a) Voyeurism [recording in a place where persons might be nude or engaged in sexual activity] "...did make a [make a visual recording or observe by mechanical or electronic means] of [name the alleged victim or a description of them] in circumstances that give rise to a reasonable expectation of privacy, when that 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"] contrary to section 162(1)(a) of the Criminal Code."
162(1)(b) Voyeurism [recording of actual nudity or sexual activity] "...did make a [make a visual recording or observe by mechanical or electronic means] of [name the alleged victim or a description of them] in circumstances that give rise to a reasonable expectation of privacy, when that person was ["engaged in sexual activity" or "exposing his or her genital organs or anal region or her breasts"], contrary to section 162(1)(b) of the Criminal Code"
162(1)(c) Voyeurism [recording for a sexual purpose] "...did ["make a visual recording" or "observe by mechanical or electronic means"] [name the alleged victim] in circumstances that give rise to a reasonable expectation of privacy, when that 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"], contrary to section 162(1)(a) of the Criminal Code."

Proof of the Offence

Proving voyeurism under s. 162(1)(a) [recording place where persons are expected to be nude or engaged in sexual activity] should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit observed and/or made a visual recording of another person;
  5. observation and/or recording was made "surreptitiously";
  6. "where the observed or recorded person had a reasonable expectation of privacy,"
  7. "the person is in a place in which a person can reasonably be expected to":
    1. "be nude",
    2. "to expose his or her genital organs or anal region or"
    3. "her breasts, or to be engaged in explicit sexual activity"


Proving voyeurism under s. 162(1)(b) [recording nudity or sexual activity] should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit observed and/or made a visual recording of another person;
  5. observation and/or recording was made "surreptitiously";
  6. "where the observed or recorded person had a reasonable expectation of privacy,"
  7. "the person is"
    1. "nude",
    2. "is exposing his or her genital organs or anal region or her breasts, or"
    3. "is engaged in explicit sexual activity" and
  8. "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"

Proving voyeurism under s. 162(1)(c) [recording made for sexual purpose] should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit observed and/or made a visual recording of another person;
  5. observation and/or recording was made "surreptitiously";
  6. "where the observed or recorded person had a reasonable expectation of privacy,"
  7. "the observation or recording was for a sexual purpose."
  1. R v Keough, 2011 ABQB 48 (CanLII), per Manderscheid J
    R v Bursey, 2017 CanLII 15621 (NL SCTD), per Stack J, at para 4

Interpretation of the Offence

It can be inferred from the accused's possession of copies of a surreptitious recording that he had made the copies.[1]

Distribution under s. 162(4) is considered the most serious of the voyeurism offences.[2]

Photographs taken up the skirt of females who are in public places may amount to an offence of voyeurism.[3]

However, photographs taken a nude beach does not amount to voyeurism.[4]

  1. R v Keough, 2011 ABQB 48 (CanLII), per Manderscheid J
  2. R v PD, 2011 ONCJ 133 (CanLII), per Robertson J, at para 56
  3. See R v Rocha, 2012 ABPC 24 (CanLII), per Groves J - guilty plea for up-skirt pictures
    see also comments R v Rudiger, 2011 BCSC 1397 (CanLII), per Voith J, at para 91
  4. R v Lebenfish, 2014 ONCJ 130 (CanLII), per M Green J

Reasonable Expectation of Privacy

See also: Reasonable Expectation of Privacy

Children playing in a public park maintain some expectation of privacy when viewed through a video camera to focus on the genital and buttocks.[1]

  1. R v Rudiger, 2011 BCSC 1397 (CanLII), 278 CCC (3d) 524, per Voith J

s. 162(1)(a)

"reasonably expected"

What is "reasonably expected" requires "a standard of expectation grounded upon a consideration of all the surrounding circumstances, while also involving an assessment of those circumstances based on common sense and our own everyday life experiences".[1]

The expectation of privacy includes protection against a culprit making surrepticious screenshots during a video-chat.[2]

Nude or Exposed

There does not need to be actual nudity or exposure. [3]

  1. R v Hamilton, 2009 BCPC 381 (CanLII), per de Couto J, at para 29
  2. R v Trinchi, 2019 ONCA 356 (CanLII)(complete citation pending), per Juriansz JA
  3. Hamilton, ibid., at para 24

"place"

Locations determined to be a "place" include:

  • The men’s urinal at the accused’s workplace as people were using it;[1]
  • The bathroom of a matrimonial home[2]
  • An office washroom in which a camera was placed in a wastebasket located between the toilet and the sink that afforded an angled view of the toilet and which recorded a female employee using the washroom[3]
  • A clearly marked women’s shower area where the male accused entered as the female complainant was taking a shower;[4]

A restaurant storage room is not a place in which a person can reasonably be expected to be nude.[5]

  1. R v Weinheimer, 2007 ABPC 349 (CanLII), per Fradsham J
  2. R v Grice, 2008 ONCJ 476 (CanLII), per Pugsley J
  3. Regina v Laskaris, 2008 BCPC 130 (CanLII), per Gill J
  4. R v Goldfuss, [2008] O.J. No. 2803 (*no CanLII links)
  5. R v Hamilton, 2009 BCPC 381 (CanLII), per de Couto J

s. 162(1)(c)

Sexual Purpose

See Sexual Interference (Offence)#Sexual Purpose

s. 162(4)

"Prints, copies, publishes, distributes, circulates, sells, advertises or makes available"

See Definition of Terms Relating to Transactions and Transferences

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Offence(s) Victim Notice
of agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 162 [voyeurism] OK Symbol.png (only if Crown proceeds by Indictment) OK Symbol.png OK Symbol.png

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 162 [voyeurism] ), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 162 [voyeurism] summary election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 162 [voyeurism] indictable election 5 years incarceration

Offences under s. [voyeurism] are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 162 [voyeurism] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

Under s. 718.3(7), where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence must be consecutive where:

  • one of the sexual offences against that child is an offence relating to child pornography under s. 163.1. (see s. 718.3(7)(a)); or
  • each of the sexual offences against a child, other than a child pornography offence, related to a different child. (see s. 718.3(7)(a))

[note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]

Principles

The offence of voyeurism is considered a grave intrusion upon the victim's privacy.[1]

The privacy of victims must be protected through ensuring that the sentence includes denunciation and deterrence.[2]

Young Victim

Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years,... shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).

Factors

The most relevant offence-based factors in sentencing include:

  • events were recorded
  • Images were distributed or placed in a location where people could access
  • Age of the victim
  • Relationship of trust
  • Planning and deliberation
  • Violence or threats of violence
  • Attempts to prevent or obstruct the complainant from reporting the offence
  • Attempts to dispose or conceal evidence
  • Previous related conviction
  • Committed while released on bail
  • Location of offence, including the expectation of privacy

Ranges

see also: Voyeurism (Sentencing Cases)

As of 2011, there had been no reported decisions where jail was given for a conviction under 162.[3]

Society demands denunciation and deterrence in sentencing for voyeurism.[4] However, where the offender has engaged in rehabilitation jail is not normally warranted.[5]

  1. R v Muggridge, 2015 CanLII 10931 (NL PC), per Gorman J, at para 52 ("Setting up a device in a washroom to videotape a female employee is not only a gross breach of her privacy, but constitutes a serious criminal offence. It sends a chilling message to women that even the washrooms at their places of employments are not safe. ")
    R v Bosomworth, 2015 BCPC 7 (CanLII), per Dhillon J, at para 38 ("It is my view that given the times in which we live, where privacy in the public sphere has been eroded by the prevalence of surveillance cameras or the ready deployment of cell phone cameras in public places, the expectation of personal privacy in highly private places must be protected. Members of the public who use the restroom facilities of any bar, restaurant or similar establishment must be assured of their utmost privacy. ")
  2. Bosomworth, ibid., at para 38("The law must protect that privacy by ensuring a deterrent and denunciatory sentence which sends the message that a criminal record is likely to result if criminal acts involve a serious breach of personal privacy.")
  3. R v Keough, 2011 ABQB 312 (CanLII), per Manderscheid J, at para 218
  4. Keough, ibid., at para 219
  5. Keough, ibid., at para 219

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 162 [voyeurism]
SOIRA Orders s. 162 [voyeurism]
  • On conviction under s. 162, as listed under s. 490.011(b), a SOIRA Order shall be ordered under s. 490.011(1)(b), on application of the prosecutor, "if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit" any SOIRA designated offence listed under s. 490.011(a), (c), (c.1), or (d):
      • If there is a concurrent or prior conviction for a designated offence listed under s. 490.013(2)(a), (c), (c.1) or (d), the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years as the offence was "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years".
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order) or 20 years (if life order)

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 162 [voyeurism] are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. Exception is made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference is less than 5 years.

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

Voyeurism came into force in 2005.[1]

  1. see 2005, c. 32, s. 6.

See Also

Distribution of Intimate Images


Distribution of Intimate Images
s. 162.1 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Note: this offence came into force March 9th, 2015. There can be no charges under this section for conduct that pre-dates the enactment date

Offences relating to distribution of intimate images are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 162.1 [distribution of intimate images] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 162.1 [distribution of intimate images] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 162.1 [distribution of intimate images] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 162.1 [distribution of intimate images] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 162.1 [distribution of intimate images] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 162.1 [distribution of intimate images] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png (under 10 years max) X Mark Symbol.png

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Publication, etc., of an intimate image without consent

162.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) of an offence punishable on summary conviction.

...
2014, c. 31, s. 3.

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving distribution of intimate images under s. 162.1 should include:

  1. the culprit "publishes, distributes, transmits, sells, makes available or advertises" an image;
  2. the image depicts a person;
  3. the image is an "intimate image";
  4. the culprit knew or was reckless to the fact that the person depicted did not give their consent to the prohibited conduct;

Interpretation of the Offence

The offence was created in response to several incidents of cyberbullying and was enacted in order to address the dangers of "revenge porn".[1]

  1. R v AC, 2017 ONCJ 317 (CanLII), per Rahman J

"publishes, distributes, transmits, sells, makes available or advertises"

See Definition of Terms Relating to Transactions and Transferences

Intimate Images

162.1
...

Definition of “intimate image”

(2) In this section, “intimate image” means a visual recording of a person made by any means including a photographic, film or video recording,

(a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;
(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and
(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.

...
2014, c. 31, s. 3.

CCC

Defences

Publication, etc., of an intimate image without consent

162.1 (1) ...

Defence

(3) No person shall be convicted of an offence under this section if the conduct that forms the subject-matter of the charge serves the public good and does not extend beyond what serves the public good.

Question of fact and law, motives

(4) For the purposes of subsection (3) [distribution of intimate images – defence],

(a) it is a question of law whether the conduct serves the public good and whether there is evidence that the conduct alleged goes beyond what serves the public good, but it is a question of fact whether the conduct does or does not extend beyond what serves the public good; and
(b) the motives of an accused are irrelevant.

2014, c. 31, s. 3.
[annotation(s) added]

CCC

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 162.1), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 162.1 [distribution of intimate images] summary election 2 years less a day incarceration and a $5,000 fine
s. 162.1 [distribution of intimate images] indictable election 5 years incarceration

Offences under s. 162.1 [distribution of intimate images] are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 162.1 [distribution of intimate images] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

Under s. 718.3(7), where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence must be consecutive where:

  • one of the sexual offences against that child is an offence relating to child pornography under s. 163.1. (see s. 718.3(7)(a)); or
  • each of the sexual offences against a child, other than a child pornography offence, related to a different child. (see s. 718.3(7)(a))

[note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]

Principles

Cyberbullying

It is logical to conclude that cyberbullying is harmful to children. It can cause loss of self-esteem, anxiety, fear, school drop-outs and increase in suicide attempts.[1]

Young Victim

Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years,... shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).

  1. AB v Bragg Communications, 2012 SCC 46 (CanLII), per Abella J, at para 20

Ranges

see also: Distribution of Intimate Images (Sentencing Cases)

In Manitoba, the starting point for "sextortion" offences where the victim is an adult is two years incarceration.[1] The bottom range would be 6 months.[2]

  1. R v McFarlane, 2018 MBCA 48 (CanLII), per Mainella JA, at para 21 ("The starting point where the victim is an adult is two years’ imprisonment, even for a first offender. This approach is more consistent with sentences for sexual assault cases and serious extortion cases.")
  2. McFarlane, ibid.

Ancillary Sentencing Orders

Offence-related Orders

Order Conviction Description
DNA Orders s. 162.1 [distribution of intimate images]
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Prohibition Order

Prohibition order

162.2 (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730 [order of discharge], of an offence referred to in subsection 162.1(1) [distribution of intimate images – offence], the court that sentences or discharges the offender, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.

Duration of prohibition

(2) The prohibition may be for any period that the court considers appropriate, including any period to which the offender is sentenced to imprisonment.

Court may vary order

(3) A court that makes an order of prohibition or, if the court is for any reason unable to act, another court of equivalent jurisdiction in the same province may, on application of the offender or the prosecutor, require the offender to appear before it at any time and, after hearing the parties, that court may vary the conditions prescribed in the order if, in the opinion of the court, the variation is desirable because of changed circumstances after the conditions were prescribed.

Offence

(4) Every person who is bound by an order of prohibition and who does not comply with the order is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than four years; or
(b) an offence punishable on summary conviction.

2014, c. 31, s. 3; 2015, c. 23, s. 33; 2019, c. 25, s. 56.
[annotation(s) added]

CCC

Restitution Order

See also: Restitution

s. 738 (1)
...
(e) in the case of an offence under subsection 162.1(1) [distribution of intimate images – offence], by paying to a person who, as a result of the offence, incurs expenses to remove the intimate image from the Internet or other digital network, an amount that is not more than the amount of those expenses, to the extent that they are reasonable, if the amount is readily ascertainable.
...
R.S., 1985, c. C-46, s. 738; 1995, c. 22, s. 6; 2000, c. 12, s. 95; 2005, c. 43, s. 7; 2009, c. 28, s. 11; 2014, c. 31, s. 24; 2019, c. 25, s. 302.
[annotation(s) added]

CCC

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

This offence went into force on March 9th, 2015.[1]

  1. See Bill C-13

Obscenity


Obscenity
s. 163, 165, 167 and 168 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 2 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to obscenity are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 163 [obscenity] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 163 [obscenity] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 163 [obscenity] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 163 [obscenity] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 163 [obscenity] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 163(1)(a) OK Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

Offences under s. 163(1)(a) are designated offences eligible for wiretap under s. 183.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Obscene materials

163 (1) Every person commits an offence who makes, prints, publishes, distributes, circulates or has in their possession for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or any other obscene thing.

Idem

(2) Every person commits an offence who knowingly, without lawful justification or excuse,

(a) sells, exposes to public view or has in their possession for that purpose any obscene written matter, picture, model, phonograph record or any other obscene thing; or
(b) publicly exhibits a disgusting object or an indecent show.
(c) and (d) [Repealed, 2018, c. 29, s. 11]
Defence of public good

(3) No person shall be convicted of an offence under this section if the public good was served by the acts that are alleged to constitute the offence and if the acts alleged did not extend beyond what served the public good.

Question of law and question of fact

(4) For the purposes of this section, it is a question of law whether an act served the public good and whether there is evidence that the act alleged went beyond what served the public good, but it is a question of fact whether the acts did or did not extend beyond what served the public good.

Motives irrelevant

(5) For the purposes of this section, the motives of an accused are irrelevant.

(6) [Repealed, 1993, c. 46, s. 1]

(7) [Repealed, 2018, c. 29, s. 11]

(8)...

R.S., 1985, c. C-46, s. 163; 1993, c. 46, s. 1; 2018, c. 29, s. 11.

CCC

Punishment

169 Every one who commits an offence under section 163 [corrupting morals], 165 [tied sale], 167 [immoral thetrical performance] or 168 [mailing obscene matters] is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.

R.S., 1985, c. C-46, s. 169; 1999, c. 5, s. 3.
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving obscene publishing under s. 162(1)(a) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. The accused "makes, prints, publishes, distributes, circulates, or has in his possession for the purpose of publication, distribution or circulation" a thing
  5. the thing is is an "obscene written matter, picture, model, phonograph record or other thing whatever;"

Proving crime comic under s. 162(1)(b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "makes, prints, publishes, distributes, sells or has in his possession for the purpose of publication, distribution or circulation" a thing
  5. the thing is a "crime comic."

Proving selling to public under s. 162(2)(a) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "sells, exposes to public view or has in his possession for such a purpose any obscene" thing
  5. the thing is an "obscene written matter, picture, model, phonograph record or other thing whatever"
  6. the culprit was aware of the character of the thing

Proving Public exhibition under s. 162(2)(b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "publicly exhibits a disgusting object or an indecent show;"
  5. the culprit was aware of the character of the object or show

Proving distributing means of abortions under s. 162(2)(c) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "offers to sell, advertises or publishes an advertisement of, or has for sale or disposal" of a thing;
  5. the thing is "any means, instructions, medicine, drug or article intended or represented as a method of causing abortion or miscarriage";
  6. the culprit was aware of the character of the thing

Proving distributing mean of restoring sexual virility under s. 162(2)(d) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "advertises or publishes an advertisement of" a thing
  5. the thing is "any means, instructions, medicine, drug or article intended or represented as a method for restoring sexual virility or curing venereal diseases or diseases of the generative organs."
  6. the culprit was aware of the character of the thing

Interpretation

Circulation

"Circulation" must involve "some public element" and cannot include showing in one's home.[1]

"Public view" does not include private showings.[2]

"Obscene"

"Obscene" is defined under s. 163(8) as:

163
...

Obscene publication

(8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.

R.S., 1985, c. C-46, s. 163; 1993, c. 46, s. 1; 2018, c. 29, s. 11.

CCC

The combination of sex and violence "will almost always constitute the undue exploitation of sex".[3]

"Explicit sex" that is "degrading or dehumanizing may be undue if the risk of harm is substantial."[4]

The character of the target audience of the materials is not a relevant consideration as to whether the materials are obscene.[5]

Public Good

The "public good" refers to the "necessary or advantageous to religion or morality to the administration of justice, the pursuit of science, literature or art, or other objects of general interest."[6]

"Public good" is also used in a defence for child pornography and Distribution of Intimate Images (Offence).

Constitutionality

Section 163(6), now repealed, violates s. 7 of the Charter and is no force or effect.[7]

  1. R v Rioux, 1969 CanLII 83 (CSC), [1969] SCR 599, per Hall J
  2. Rioux, ibid.
  3. R v Butler, [1992] 1 SCR 452, 1992 CanLII 124 (SCC), per Sopinka J
  4. Butler, ibid.
  5. R v Germain, [1985] 2 SCR 241, 1985 CanLII 54 (SCC), per Dickson CJ and Lamer J
  6. R v American News Company Limited, 1957 CanLII 119 (ON CA), per Laidlaw JA
  7. R v Metro News Ltd., 1986 CanLII 148 (ON CA), per Martin JA

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles on sentence for sexual offences, see Sexual Offences
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 163 [obscenity] summary election 2 years less a day incarceration and a $5,000 fine
s. 163 [obscenity] indictable election 2 years incarceration

Offences under s. 163 [obscenity], 167 [immoral theatrical performance] or 168 [mailing obscene matter] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 163 [obscenity],
s. 167 [immoral theatrical performance] or
s. 168 [mailing obscene matter]
any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Obscenity (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
  • None
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 163 [obscenity] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

Prior to December 13, 2018, the offence read as follows:

Corrupting morals

163. (1) Every one commits an offence who

(a) makes, prints, publishes, distributes, circulates, or has in his possession for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or other thing whatever; or
(b) makes, prints, publishes, distributes, sells or has in his possession for the purpose of publication, distribution or circulation a crime comic.
Idem

(2) Every one commits an offence who knowingly, without lawful justification or excuse,

(a) sells, exposes to public view or has in his possession for such a purpose any obscene written matter, picture, model, phonograph record or other thing whatever;
(b) publicly exhibits a disgusting object or an indecent show;
(c) offers to sell, advertises or publishes an advertisement of, or has for sale or disposal, any means, instructions, medicine, drug or article intended or represented as a method of causing abortion or miscarriage; or
(d) advertises or publishes an advertisement of any means, instructions, medicine, drug or article intended or represented as a method for restoring sexual virility or curing venereal diseases or diseases of the generative organs.
Defence of public good

(3) No person shall be convicted of an offence under this section if the public good was served by the acts that are alleged to constitute the offence and if the acts alleged did not extend beyond what served the public good.

Question of law and question of fact

(4) For the purposes of this section, it is a question of law whether an act served the public good and whether there is evidence that the act alleged went beyond what served the public good, but it is a question of fact whether the acts did or did not extend beyond what served the public good.

Motives irrelevant

(5) For the purposes of this section, the motives of an accused are irrelevant.
(6) [Repealed, 1993, c. 46, s. 1]

Definition of “crime comic”

(7) In this section, “crime comic” means a magazine, periodical or book that exclusively or substantially comprises matter depicting pictorially

(a) the commission of crimes, real or fictitious; or
(b) events connected with the commission of crimes, real or fictitious, whether occurring before or after the commission of the crime.
Obscene publication

(8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.
R.S., 1985, c. C-46, s. 163; 1993, c. 46, s. 1.

CCC

See Also

Related Offences
References

Child Pornography


Child Pornography
s. 163.1 of the Crim. Code
Election / Plea
Crown Election Hybrid / Indictable
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum 6 months incarceration
Maximum 2 years less a day incarceration
Indictable Dispositions
Avail. Disp. same as summary
Minimum 1 year incarceration
Maximum 10 years incarceration (poss'n/access)
14 years incarceration (make/distr.)
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to child pornography are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct". There are four forms of child pornography offences. They relate to the possession, access, distribution/making available, and making of child pornography.

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 163.1(2) [making child pornography] and
s. 163.1(3) [distributing child pornography]
Indictable Offence(s) OK Symbol.png OK Symbol.png OK Symbol.png (14 years max)
s. 163.1(4) [possessing child pornography] and
s. 163.1(4.1) [accessing child pornography]
Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 163.1(4), and (4.1) are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury. Offences under s. 163.1(2) and (3) are straight indictable. There is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 163.1(4) [possessing child pornography] and
s. 163.1(4.1) [accessing child pornography]
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 163.1(2) [making child pornography] and
s. 163.1(3) [distributing child pornography]
From July 17, 2015
X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png
s. 163.1(2) [making child pornography] and
s. 163.1(3) [distributing child pornography]
Until July 17, 2015
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 163.1(4) [possessing child pornography] and (4.1) [accessing child pornography], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

When charged under s. 163.1(2) [making child pornography] and (3) [distributing child pornography], the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.[1]

Fingeprints and Photos

A peace officer who charges a person under s. 163.1 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Section s. 163.1 offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).

Where the offence relates to charges under s. 163.1, a judge must order 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, broadcast or transmitted pursuant to s. 486.4(3).

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 163.1(2), (3), (4), (4.1) OK Symbol.png OK Symbol.png OK Symbol.png (varies) X Mark Symbol.png

Offences under s. 163.1 are designated offences eligible for wiretap under s. 183.

Offences under s. 163.1 are "designated" offences under s. 752 for dangerous offender applications.

Offences under s. 163.1 (2) [possibly (3), (4), or (4.1)] are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

  1. Only for charges after July 17, 2015

Offence Wording

163.1
...

Making child pornography

(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of an indictable offence and 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.

Distribution, etc. of child pornography

(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 an indictable offence and 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.

Possession of child pornography

(4) Every person who possesses any child pornography is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) 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 six months.
Accessing child pornography

(4.1) Every person who accesses any child pornography is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) 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 six months.
Interpretation

(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.

...
1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7; 2012, c. 1, s. 17; 2015, c. 23, s. 7.

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
163.1 "... contrary to section 163.1 of the Criminal Code."

Interpretation of the Offence

The provisions of s.163.1 were found constitutional. [1]

  1. Ontario (Attorney General) v Langer, 1995 CanLII 7422 (ON SC)

Child Pornography Defined

Distribution and Making Available

Possession

Procedure

For Viewing and Displaying Child Pornography in Court see Real Evidence#Child Pornographic Images and Videos

For Disclosing Child Pornography to Defence see Limitations_on_Access_to_Disclosure#Limiting_Child_Pornography

Defences

Case Digests

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also

External links

References
References

Possession and Access of Child Pornography

Child Pornography
s. 163.1 of the Crim. Code
Election / Plea
Crown Election Hybrid / Indictable
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum 6 months incarceration
Maximum 2 years less a day incarceration
Indictable Dispositions
Avail. Disp. same as summary
Minimum 1 year incarceration
Maximum 10 years incarceration (poss'n/access)
14 years incarceration (make/distr.)
Reference
Offence Elements
Sentence Digests

Overview

See also: Child Pornography (Offence)

Offence Wording

s. 163.1
...

Possession of child pornography

(4) Every person who possesses any child pornography is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) 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 six months.
Accessing child pornography

(4.1) Every person who accesses any child pornography is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) 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 six months.
Interpretation

(4.2) For the purposes of subsection (4.1) [accessing child pornography], a person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.
...
1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7; 2012, c. 1, s. 17; 2015, c. 23, s. 7.
[annotation(s) added]

CCC

Proof of the Offence

Proving possession of child pornography under s. 163.1(4) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit possessed images, videos or texts
  5. the images, videos or texts were child pornographic
  6. the culprit knew or was wilfully blind to the nature of the materials


Proving accessing of child pornography under s. 163.1(4.1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit obtained access to materials, either through a computer or otherwise
  5. the materials accessed were child pornographic
  6. the culprit knew or was wilfully blind to the nature of the materials

Possession

See also: Possession

The minimum requirements to prove personal possession of a file requires:[1]

  1. physical contact with the file;
  2. knowledge of the criminal character of the file; and
  3. a degree of control over the file.

As with all forms of possession, the Crown must prove knowledge and control.[2]

While constructive possession requires:[3]

  1. the accused have knowledge of the character of the object;
  2. the accused knowingly puts or keeps the object in a particular place; and
  3. the accused intends to have the object in the place for his "use of benefit" or that of another person.

Where an accused acknowledges ownership or physical possession of a computer then personal possession is at issue.[4]

Subject matter of possession

Possession of child pornography requires "possession of the underlying data files in some way". "Simply viewing images online" is not sufficient.[5]

What is being "possessed" to make out the offence is simply the file itself, not the image or depiction found within the file.[6]

Possession concerns the control of the underlying file and not the image or video depicted.[7] For that reason, it is not necessary that the accused actually have viewed the images/videos to be in possession of them.[8] It is only necessary that the accused be aware of the underlying illegal nature of the file stored on the computer.[9]

The accused begins their possession at the time that they initiate the download, not at the point where the download is complete.[10]

"Cached" files

The automatic storing of files as part of the computer's "cache" alone does not amount to possession. A person cannot be expected to know about the files that are stored there.[11] There may however be "rare cases" where possession can be found in cache files.[12]

Internet Browsing is Not Possession

Simply accessing websites or viewing images onscreen does not make out possession of those images.[13]

  1. R v Tresierra, 2006 BCSC 1013 (CanLII), per D Smith J
    R v Garbett, 2010 ONSC 2762 (CanLII), per Tulloch J, at para 42
    R v Morelli, [2010] 1 SCR 253, 2010 SCC 8 (CanLII), per Fish J, at paras 14 to 16
  2. Morelli, ibid., at para 15 ("It is undisputed that knowledge and control are essential elements common to both.")
  3. Morelli, supra, at para 17
  4. e.g. Garbett, supra, at para 34
  5. Morelli, supra, at para 14
  6. Morelli, supra, at paras 24 to 26
    R v Panko, 2007 CanLII 41894 (ON SC), 52 C.R. (6th) 378 [2007] OJ No 3826 (S.C.J.), per Newbould J
    R v Weir, 2001 ABCA 181 (CanLII), 95 Alta. L.R. (3d) 225, per curiam
    R v Daniels, 2004 NLCA 73 (CanLII), per Welsh JA
  7. Morelli, supra, at para 19
  8. Daniels, supra, at paras 12 to 14
  9. R v Beaver, 1957 CanLII 14 (SCC), [1957] SCR 531, per Cartwright J
  10. Daniels, supra, at paras 10 to 14
    Morelli, supra, at para 23
  11. R v Morelli, 2010 SCC 8 (CanLII), per Fish J, at para 36
  12. Morelli, ibid.
  13. Morelli, ibid., at paras 65 to 66 (“merely browsing a website or viewing images onscreen does not constitute possession.”)

Physical Contact

It is usually sufficient for the Crown to prove physical contact by establishing "that the material was on a computer with which the accused had contact, or to which the accused had access."[1] Mere possession of a computer, however, is not sufficient to establish all elements of personal possession.[2]

This element has been made out by inference where discs containing the files were found in a desk drawer of the accused's locked bedroom.[3]

  1. R v Braudy, 2009 CanLII 2491 (ON SC), per Stinson J, at para 47 ("It is merely required, in other words, to show that the material was on a computer with which the accused had contact, or to which the accused had access.")
  2. R v Cockell, 2013 ABCA 112 (CanLII), per Bielby JA, at para 71
  3. see R v Love, 2011 ABPC 40 (CanLII), per Philp J, at para 24

Knowledge

See also: Knowledge and Wilful Blindness

The elements of knowledge consist of two branches. The "accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is."[1]

The element of knowledge requires that the accused be aware of the "criminal character of the item".[2] This does not require that the accused be aware that the files meet the legal definition of child pornography, rather it only requires that they know of the "nature and contents" of the file.[3]

The fact that a file was found on a computer does not lead inexorably to the conclusion that the user knew of the existence of the file, that it was ever viewed, that the user intended to view it, intended to save it, or did anything to cause it to be saved.[4]

Where the accused has viewed the materials, he becomes imbued with the knowledge of the files' contents.[5] Knowledge can be inferred on the basis of circumstantial evidence.[6]

It has been suggested that there is no real difference between knowing what is in a person's car or in his computer such that knowledge of the contents can be inferred for both.[7]

  1. R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253, per Fish J, at para 16
  2. see R v Garbett, 2010 ONSC 2762 (CanLII), per Tulloch J, at para 40
    R v Chalk, 2007 ONCA 815 (CanLII), per Doherty JA, at para 18
  3. R v Garbett, 2008 ONCJ 97 (CanLII), [2008] OJ No 917, per MacDonnell J, at para 40
  4. Garbett, ibid., at para 24 ("the mere fact that an image was found on a computer’s hard drive does not lead inexorably to an inference that the user knew of its existence, or that the user had ever viewed it, intended to view it, intended to save it, or did anything to cause it to be saved. ") appealed to 2010 ONSC 2762 (CanLII), per Tulloch J
    R v Allart, 2009 BCSC 1949 (CanLII), per Bracken J, at para 56
  5. see Garbett (ONCJ), supra, at para 47
    Also R v Braudy, 2009 CanLII 2491 (ON SC), per Stinson J, at para 51
  6. e.g. R v Grey, 1996 CanLII 35 (ON CA), (1996), 28 O.R. (3d) 417 (C.A.), per Laskin JA
    Braudy, supra, at para 51 ("While [direct evidence of viewing] may be sufficient proof of knowledge, however, it is not strictly necessary. Knowledge may instead be inferred from circumstantial evidence")
  7. R v Missions, 2005 NSCA 82 (CanLII), per Roscoe JA, at para 71
    R v Johannson, 2008 SKQB 451 (CanLII), per Gabrielson J, at para 44

Factors in Inferring Knowledge

Factors in favour of knowledge include:[1]

  • the accused's ownership of the computer[2]
  • history of the accused's frequent use of the computer[3]
  • elaborate filing system of the files[4]
  • presence of the files on the computer for an extended period of time
  • concealing the files in cryptic or obscure folder names or locations
  • use of secure wiping software
  • the use of settings that delete records of the user's activities
  • presence of user-created links to the folders containing the files
  • evidence of the accused's interest in the materials
  • websites visited from internet history[5]
  • the accused level of computer skills
  • use of search terms indicative of child pornography[6]
  • the number of child pornography files present on the computer[7]
  • evidence of child pornography on other devices owned or possessed by the accused, as well the number of devices total[8]
  • the presence of children's belongings[9]
  • file names suggestive of child pornography[10]

Factors in favour of unknowing possession include:[11]

  • the existence of a previous owner of the computer
  • multiple persons with access to the computer, in light of their familiarity with computers[12]
  • evidence of misleading files names causing inadvertent downloading
  • automated downloading while web-browsing
  • pop-up sites, spyware, viruses

Courts should look at indicators such as "ownership, access, and usage of the computers on which the electronic file is stored".[13] Knowledge in some cases can be inferred by simply establishing that the accused was the owner of the computer or even the last person to use the computer.[14]

Evidence can include links or icons on the desktop of the computer.[15]

While the existence of a previous owner is a factor to consider, it is not necessary for the Crown to disprove the existence of a previous owner to establish knowledge.[16]

Evidence of other people accessing the computer weighs against knowledge.[17]

The larger the number of transactions involving the files, the number of files present, the number of devices containing the files, the manner in which they were stored, and their file names will make inadvertent downloading less likely.[18]

While indicative file names can be misleading, when the number of files is large, the inference of knowledge will be stronger.[19]

Evidence of the accused's interest in child pornographic subject matters, either through forensic evidence or by external evidence such as a statement will tend towards establishing knowledge.[20]

User-created links found on the desktop that connected to folders containing child pornography was sufficient evidence to infer knowledge.[21]

Evidence of attempts to conceal the user's activities, such as with wiping software or setting that automatically delete the user's internet history.[22]

Where the internet browsing history is adduced, the Crown should also present evidence of the contents of the website to strengthen the inference.[23]

A person can be aware that they possess a computer or a storage device without being aware of their contents.[24]

File Location

Signs of attempts to conceal the files will be a factor in favour of intentional acquisition of files.[25]

The presence of an organized collection of child pornography images was enough to infer knowledge.[26]

Files that are in the unallocated clusters (having been deleted) may make the ability to infer knowledge diminished.[27]

Evidence of Means of File Acquisition

The question of how the files came to be on the computer is a major area of inquiry, particularly where possession is not well established by other evidence.

There generally are three relevant ways in which a file can get on a computer:[28]

  1. the accused downloaded it knowingly;
  2. the accused downloaded it unknowingly;
  3. a third party downloaded it, either knowingly or unknowingly.

Files can get on a computer from previous owner, another user, accidental download based on misleading file names, downloaded while web-browsing, pop-up sites, and spyware.[29] The courts should be cautious of these considerations, however, as inadvertent download does not eliminate the possibility of knowledge after the fact and where the evidence of inadvertence is limited, the presumption of the users intent will apply and establish knowledge.[30]

In some cases, the lack of evidence of file acquisition can raise a doubt on guilt as other persons may be responsible for putting the files on the computer.[31]

Physical Location

The location in which the device was found can lead to an inference of knowledge. The intimate nature of the bedroom will create a stronger inference of knowledge.[32]

  1. see cases discussed below for sources
  2. see R v Love, 2011 ABPC 40 (CanLII), per Philp J, at para 30
  3. see Love, ibid., at para 30
  4. R v Caza, 2012 BCSC 627 (CanLII), per Powers J, at para 67
  5. see Love, supra, at para 30
  6. R v Leask, 2013 BCSC 653 (CanLII), per Bernard J
  7. Leask, supra
  8. see Love, supra, at paras 30, 32
  9. see Love, supra, at para 30 - children's underwear in his bedroom
  10. R v Donnelly, 2010 BCSC 1294 (CanLII), per Schultes J
  11. see cases discussed below for sources
  12. Love, supra, at para 32
  13. R v Braudy, 2009 CanLII 2491 (ON SC), per Stinson J, at para 52
    citing R v Tresierra, 2006 BCSC 1013 (CanLII), [2006] BCJ No. 1593, per D Smith J, at paras 7 and 8
  14. Tresierra, supra, at para 46
    R v Garbett, 2010 ONSC 2762 (CanLII), per Tulloch J, at para 42
  15. eg. R v Panko, 2007 CanLII 41894 (ON SC), [2007] OJ No 3826 (S.C.J.), per Newbould J, at para 61
  16. e.g. Braudy, supra, at paras 56, 57
  17. e.g. Tresierra, supra, at para 53
  18. Braudy, supra, at paras 68 to 72
  19. R v Donnelly, 2010 BCSC 1294 (CanLII), per Schultes J
  20. Braudy, supra, at para 77
  21. Panko, supra, at para 61
  22. Braudy, supra, at para 75
  23. Love, supra, at para 31
  24. Love, supra, at para 32
  25. Braudy, supra, at para 74 (using file folders named "X" and "_")
  26. Missions, supra
  27. Garbett, supra, at para 44
    Tresierra, supra, at paras 51 to 56
    Braudy, supra, at para 53
  28. R v Panko, 2006 ONCJ 200 (CanLII), per Reinhardt J
    see also Tresierra, supra, at para 27
  29. Braudy, supra, at para 53
    Tresierra, supra, at para 27
  30. Braudy, supra, at paras 54, 55
    R v Missions, 2005 NSCA 82 (CanLII), per Roscoe JA, at para 21
  31. e.g. Tresierra, supra, at para 54
  32. R v Smith, 2013 ONSC 2274 (CanLII), [2013] OJ No 1731 (SC), per Leach J - regarding cocaine found in bedroom

Control

The Crown must show either physical contact or control.[1]

Control over a computer file refers to the "power or authority over the item, whether exercised or not."[2]

Evidence of control can consist of evidence of downloading, copying, moving, storing the files, organizing the files in a user-created filing system, or accessing and creating data on separate occasions.[3]

Control can be inferred by the same evidence from which knowledge can be inferred.[4] In a similar sense, there is no principled distinction between a car and a computer. Inferences may be drawn of control and knowledge.[5]

Control can be based on the duration for which the files were present on the hard drive.[6]

  1. R v Panko, 2007 CanLII 41894 (ON SC), per Newbould J, at para 47
  2. R v Chalk, 2007 ONCA 815 (CanLII), per Doherty JA, at para 19
    see also R v Daniels, 2004 NLCA 73 (CanLII), (2004), 191 CCC (3d) 393 (N.L.C.A.), per Welsh CJ, at para 12, the ability to determine "what will be done with the material."
  3. R v Garbett, 2010 ONSC 2762 (CanLII), per Tulloch J, at para 48
    R v Braudy, 2009 CanLII 2491 (ON SC), per Stinson J, at paras 88 to 90
  4. Braudy, ibid., at para 89
    see R v Tripp, 2007 NBPC 32 (CanLII), per Arsenault J, at para 15
  5. Panko, supra, at para 71
  6. Chalk, supra, at para 26 - files were on the hard drive for several months

Accessing

Accessing is a separate offence from possession. It was created to "capture those who intentionally viewed child pornography on the [inter]net but where the legal notion of possession may be problematic".[1]

Accessing requires "knowingly causing child pornography to be viewed by, or transmitted to, oneself."[2]

The definition of accessing excludes the possibility of "inadvertent viewing" where the user opens the file unaware of its criminal character.[3]

The manner in which a file is stored can be suggestive of accessing rather than possession. For example, a file stored in a cache (stored as "temporary internet files") is indicative of accessing, either inadvertently or inadvertently, by the user.[4]

The mere fact that a file was stored as a temporary internet file does not infer that the accused knew of the presence of the file, viewed it, or intended to save it.[5]

Evidence of browsing child pornographic sites, the saving of a "favourite" link to a child pornographic site, and indicators of frequent downloading of child pornographic materials is sufficient to establish accessing.[6]

  1. R v Morelli, 2010 SCC 8 (CanLII), per Fish J, at paras 25 to 27 (it captures conduct of those who “intentionally view child pornography on the internet” in circumstances were the “legal notion of possession may be problematic.")
    citing R v Panko, 2007 CanLII 41894 (ON SC), (2007), 52 C.R. (6th) 378, per Newbould J
    R v Weir, 2001 ABCA 181 (CanLII), per curiam
    R v Daniels, 2004 NLCA 73 (CanLII), per Welsh CJ
  2. see s. 163.1(4.2)
    R v RD, 2010 BCCA 313 (CanLII), 289 BCAC 133, per Bennett JA, at para 31 ("The elements of accessing child pornography are: knowingly causing child pornography to be viewed by, or transmitted to, oneself.")
  3. R v Garbett, 2010 ONSC 2762 (CanLII), per Tulloch J, at para 16
  4. e.g. Garbett, supra
    R v Woods, 2008 ONCJ 395 (CanLII), [2008] OJ No 3466 (Ct. J.), per GA Campbell J, at paras 15, 47 to 49 (deleted file consistent with inadvertent accessing)
    Morelli, supra, at paras 14, 35
  5. Garbett, supra, at para 9 - citing findings of lower court
  6. R v Graham, 2011 ONSC 4002 (CanLII), per Desotti J, at para 18

Evidential Issues

In the absence of direct evidence, the court may draw an inference of guilt from the circumstances of the discovery of the child pornography.[1]

An intention to download CP files can be inferred by the number of CP files found in the shared directory of the file-sharing program.[2]

Possession (as well as accessing) can be inferred by factoring in evidence such as:[3]

  • the internet search history;
  • the number of images present at any given time;
  • number of locations the images were found;
  • the duration of existence;

An admission by the accused that he viewed child pornography is not determinative to accessing or possessing. The judge must consider its weight and degree of consistency with the forensic evidence.[4] The Crown should attempt to link the admission with the forensic evidence.[5]

An accused can be found guilty of having accessed and possessed child pornography only where “he knew that at least one of the files that he downloaded showed a person under the age of 18 engaged in explicit sexual activity.”[6]

  1. R v Wright, 2019 ABCA 452 (CanLII), at para 8
    R v Berkson, 2015 BCCA 224 (CanLII), per Frankel JA, at para 12
  2. R v Pelich, 2012 ONSC 3611 (CanLII), per Dunnet J, at para 72
  3. e.g. R v Tootoosis, 2010 ABQB 11 (CanLII), per Burrows, at paras 32 to 54 - denial by accused rejected due to evidence of history, amount of pictures and their locations
  4. R v Garbett, 2010 ONSC 2762 (CanLII), per Tulloch J, at para 68
  5. Garbett, ibid., at para 69
  6. R v Pressacco, 2010 SKQB 114 (CanLII), per Currie J

Determining Acquisition of Files

See above under "Knowledge"

Time of Possession and Access

When a file is created or accessed a time and date stamp is frequently recorded.[1]

The time and time stamp may be unreliable where the user failed to corrected set the internal clock on the computer or where the clock has been intentionally changed to falsify the time and date stamp.[2]

The time of the access or possession is not essential for the Crown to prove, unless defence present evidence that relies upon the dates of the information such as alibi evidence. A judge would err to acquit simply due to lack of evidence with respect to time.[3]

  1. R v Braudy, 2009 CanLII 2491 (ON SC), per Stinson J, at para 57
  2. Braudy, ibid., at para 58
  3. R v Jacques, 2013 SKCA 99 (CanLII), per Richards CJ, at paras 65, 68 to 70
    R v Rytel, 2019 ONSC 1014 (CanLII), per Harris J, at para 25
    R v Carswell, 2009 ONCJ 297 (CanLII), [2009] O.J. No. 2624, at pp. 456-469

Shared Access to Computer

Where there is evidence that multiple people had access to the computer containing the files at issue, the level of computer competency of each person is significant.[1] It assists in evaluating the reasonableness of other person being capable of downloading or planting the files on the computer without the accused being aware.

Where the evidence simply suggests that other people may have had access to the computer without anything further, such as corroboration with forensic evidence, can be dismissed as speculation.[2]

  1. e.g. R v Braudy, 2009 CanLII 2491 (ON SC), per Stinson J, at paras 62 to 67
  2. e.g. R v Graham, 2011 ONSC 4002 (CanLII), per Desotti J, at paras 21, 22

Deleted Files

An accused does not possess a file where he believes that it has been permanently deleted.[1]

The fact that a file is deleted does not alter or end the possession of the file.[2] However, the ability to make the inference of knowledge of deleted files is less than files readily visible to the user.[3]

Generally, "it does not matter for the purpose of criminal possession how briefly one is in possession of the object".[4]

Where a file has been deleted but not overwritten, the Crown should establish that the accused knew that the files were still accessible and knew how to access them.[5]

A judge may infer knowledge of deleted files based on indicators such as:[6]

  • ownership of the computer
  • access to the computer
  • usage of the computer
  1. R v McDermid, 2008 CanLII 68135 (ON SC), per Hackland J
    see also UK: R v Rowe [2008] EWCA Crim 2712 (04 November 2008) <http://www.bailii.org/ew/cases/EWCA/Crim/2008/2712.html>
  2. R v Benson, 2012 SKCA 4 (CanLII), per Herauf JA, at paras 14 to 17
  3. R v Tripp, 2007 NBPC 32 (CanLII), [2007] NBJ No. 336, per Arseneault J, at para 23
    R v Tresierra, 2006 BCSC 1013 (CanLII), [2006] BCJ No. 1593, per D Smith J, at paras 51 to 56
    R v Braudy, 2009 CanLII 2491 (ON SC), per Tulloch J
  4. R v Morelli, 2010 SCC 8 (CanLII), per Fish J, at para 30
  5. R v Davies, 2012 ONSC 3631 (CanLII), per spies J
  6. R v Midwinter, 2015 ONCA 150 (CanLII), at para 14

Procedural Issues

Section 163(1)(a) [corrupting morals] can be a lesser included offence of s. 163.1(4).[1]

Difference Between Possession and Accessing

Accessing is considered an "entirely separate and distinct" offence from possession.[2]

  1. R v JC, 2013 BCPC 237 (CanLII), per MacCarthy J, at para 2
  2. R v Beierle, 2017 ONSC 1520 (CanLII), per Campbell J, at paras 9 to 12
    R v Farmer, 2014 ONCA 823 (CanLII), per Sharpe JA, at para 27 ("These two crimes are distinct. ")

See Also

Distribution, Making Available, and Making Child Pornography

Child Pornography
s. 163.1 of the Crim. Code
Election / Plea
Crown Election Hybrid / Indictable
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum 6 months incarceration
Maximum 2 years less a day incarceration
Indictable Dispositions
Avail. Disp. same as summary
Minimum 1 year incarceration
Maximum 10 years incarceration (poss'n/access)
14 years incarceration (make/distr.)
Reference
Offence Elements
Sentence Digests

Overview

See also: Child Pornography (Offence)

Offence Wording

s. 163.1
...

Making child pornography

(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of an indictable offence and 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.

Distribution, etc. of child pornography

(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 an indictable offence and 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.

...
1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7; 2012, c. 1, s. 17; 2015, c. 23, s. 7.

CCC

Proof of the Offence

Proving making child pornography under s. 249.1(3) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit did the act of making, printing, publishing or possessing for the purpose of publishing materials
  5. the culprit specifically intended to perform the impugned act
  6. the materials were child pornography
  7. the culprit knew or was wilfully blind to the materials being child pornographic

Proving making available or distribution of child pornography under s. 249.1(3) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. that the material in question constituted child pornography;
  5. that the child pornography was actually made available by the accused (make available) or actually distributed by the accused (distribute); and
  6. that the accused had the intent to make child pornography available to others.[1]
  1. R v Johannson, 2008 SKQB 451 (CanLII), per Gabrielson J, at para 34
    R v Spencer, 2011 SKCA 144 (CanLII), per Caldwell JA, at para 87 (mens rea)

Distribution and Making Available

Actus Reus

There are two ways that there can be a conviction under s. 163.1(3) for distribution. A person will either (1) transmit, make available or export child pornography; or (2) possess for the purpose of transmission, making available or exportation of child pornography.[1]

  1. R v Giuseppe Michienzi, 2013 ONSC 1025 (CanLII), per Bryant J, at para 22

Distribution, Making Available, etc

Mens Rea

The mens rea requires one of the following:[1]

  1. proof of actual intent on the part of the accused to make computer files containing child pornography available to others using a file sharing program;
  2. actual knowledge on the part of the accused that file sharing programs make files available to others; or
  3. proof of wilful blindness. Wilful blindness can be satisfied with proof the accused’s file sharing program had actually made child pornographic files available to others coupled with a suspicion on his part that it had done so but where no steps were taken to determine if his suspicion was true.

The accused must have a subjective knowledge of the character of the images, video or text that is child pornographic.[2] Recklessness is not sufficient.[3]

Awareness of the ability of a peer-to-peer client to share files downloaded onto a computer can constitute “making available”.[4] However, this conclusion can be rebutted where steps were taken to delete or remove the contents of the shared file folder.[5] The mens rea can be proven an actual intention to make the materials available.[6] Familiarity with how peer-to-peer software works on its own is not sufficient to establish actual intent.[7]

The mens rea is made out if the crown proves wilful blindness "by proving the accused’s file sharing program had actually made child pornography files available to others and the accused had actual suspicion that it had done so, but had made a conscious decision not to determine whether his suspicion was in fact an actuality."[8]

Recklessness has been used as a basis to prove mens rea.[9]

The mens rea does not require actual knowledge. It merely requires "the accused's awareness that the downloaded child pornography could be made available to others by his use of a file sharing program." [10]

The court can consider the evidence visible to the user indicating file sharing, such as:[11]

  • evidence in a statement to police acknowledging that the program is a file-sharing program;
  • evidence in a statement to police that he had changed at least one default setting in LimeWire;
  • that when program is first installed on a computer, it displays information notifying the user that it is a file-sharing program;
  • that at the start of each session, LimeWire notifies the user that it is a file-sharing program and warns of the ramifications of file-sharing;
  • that the program contains built-in visual indicators that show the progress of the uploading of files by others from the user’s computer
  • evidence of the accused's knowledge of using the software and computers more generally[12]

Knowledge can be inferred that any message or notification from the software when the user starts the program was read by the user.[13]

The court can also consider the accused's experience and familiarity with computers generally.[14]

Evidence that some files were moved from the shared folder to another folder will suggest an intent to share the remaining files in the folder.[15]

It is not necessary for the Crown to prove the accused “had knowledge of an overt act of dissemination, namely that images of child pornography were being transferred to other computers.” It was only required that the accused “knew, or was willfully blind to the fact, that [the program] makes files available to others.”[16]

  1. R v Lorenz, 2012 SKQB 293 (CanLII), per Schwann J
    R v Spencer, 2014 SCC 43 (CanLII), per Cromwell J
  2. R v Giuseppe Michienzi, 2013 ONSC 1025 (CanLII), per Bryant J, at paras 25, 29
  3. Michienzi, supra, at para 29
  4. R v Johannson, 2008 SKQB 451 (CanLII), per Gabrielson J
    cf. R v Pressacco, 2010 SKQB 114, at para 30 (judge refused to infer intention "from his knowledge of the operation of file-sharing")
    Michienzi, supra, at para 28
  5. Pressacco, supra, at para 33
  6. R v Lamb, 2010 BCSC 1911 (CanLII), per Ehrcke J, at paras 74, 75 - suggests that actual knowledge is necessary ("the mens rea required for the offence of making child pornography available under s. 163.1(3) of the Criminal Code is an actual intention to make the material available")
  7. R v Pelich, 2012 ONSC 3611 (CanLII), per Dunnet J, at para 102
  8. R v Spencer, 2011 SKCA 144 (CanLII), per Caldwell JA, at para 87 ("the Crown could also satisfy the knowledge requirement of the mens rea element of the s. 163.1(3) “makes available” offence on the basis of wilful blindness by proving the accused’s file sharing program had actually made child pornography files available to others and the accused had actual suspicion that it had done so, but had made a conscious decision not to determine whether his suspicion was in fact an actuality.") appealed at 2014 SCC 43 (CanLII), per Cromwell J
  9. R v Rivet, 2011 ONCA 122(*no CanLII links) -- offender was sophisticated computer user and understood the file sharing system. he failed to change the settings until after the police were able to download CP from his machine
  10. Spencer, supra, at para 87 aff'd by SCC
  11. e.g. R v Jeffrey, 2012 SKPC 12 (CanLII), per Agnew J, at para 74
    see also R v Johannson
    Spencer, supra (SCC), at para 85 - in context of est. wilfull blindness
  12. e.g. see R v Spencer, 2015 SKQB 62 (CanLII), per RS Smith J
  13. R v Johnannson, 2008 SKQB 451 (CanLII), per Gabrielson J, at paras 45 to 46
  14. Jeffrey, supra, at paras 76 to ?
  15. See Lamb, supra, at para 74
    R v Smith, 2011 BCSC 1826 (CanLII), per Brown J, at para 182
  16. R v Capancioni, 2018 ONCA 173 (CanLII), per Hoy ACJ

Deleted files

Evidence of the quick removal of the child pornographic materials from the "shared folder" suggests an intention to prevent sharing.[1]

Making

What is "Making"

The "making" of child pornography requires the "creation of novel child pornography, that is, an instance of child pornography that is different from existing instances."[1]

By contrast, some older decisions have stated that downloading and then transmitting child pornography to disks amounts to making.[2]No cases post-2008 have agreed with this proposition however.

Who is the "Maker"

The "maker" is the person who “directs or controls production of novel child pornography”[3]


  1. R v Keough, 2011 ABQB 48 (CanLII), per Manderscheid J, at para 232
    R v Pelich, 2012 ONSC 3611 (CanLII), per Dunnet J, at para 132
    R v Davies, 2012 ONSC 3631 (CanLII), per Spies J - rejects copying files as "making"
  2. See R v Mohanto, [2002] OJ No 5840 (C.J.)(*no CanLII links)
    R v BW, [2002] OJ No 5727 (C.J.)(*no CanLII links)
    R v Horvat, [2006] OJ No 1673 (S.C.), 2006 CanLII 13426, per Lack J, aff’d on other grounds, 2008 ONCA 75 (CanLII), per curiam
    R v Dittrich, [2008] OJ No 1617 (S.C.), 2008 CanLII 19217 (ON SC), per Jenkins J
  3. R v Barabash, 2012 ABQB 99 (CanLII), per Thomas J, at para 114 appealed to 2015 SCC 29 (CanLII), per Karakatsanis J
    R v Hewlett, 2002 ABCA 179 (CanLII), per Fraser CJ

See Also

History of Child Pornography Offences

History

See also: List of Criminal Code Amendments and Child Pornography Sentencing

Section 163.1 was enacted in 1993 (S.C. 1993, c. 46, s. 2) to add offences related to child pornography.[1]

  1. R v Katigbak, 2011 SCC 48 (CanLII), [2011] 3 SCR 326, per McLachlin CJ and Charron J

2015 to Present

On July 17, 2015, the Tougher Penalties for Child Predators Act (Bill C-26) came into force resulting in an increase of the minimum and maximum penalties. For making child pornography under s. 163.1(2) and distributing under s. 163.1(3), the maximum penalty by indictment increased from 10 years to 14 years. The offences were made to be straight indictable. For possession under s. 163.1(4) and accessing under s. 163.1(4.1) the minimum for summary conviction increased from 90 days to 6 months and for indictable offences increased from 6 months to 1 year. The maximum for summary conviction increased from 18 months to 2 years less a day and for indictable offences increased from 5 years to 10 years.

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 person under the age of eighteen years that would be an offence under this Act; or
(d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.
Making child pornography

(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of an indictable offence and 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.

Distribution, etc. of child pornography

(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 an indictable offence and 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.

Possession of child pornography

(4) Every person who possesses any child pornography is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) 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 six months.
Accessing child pornography

(4.1) Every person who accesses any child pornography is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) 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 six months.
Interpretation

(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.

Aggravating factor

(4.3) If a person is convicted of an offence under this section, the court that imposes the sentence shall consider as an aggravating factor the fact that the person committed the offence with intent to make a profit.

Defence

(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 being under the age of eighteen years.

Defence

(6) No person shall be convicted of an offence under this section if the act that is alleged to constitute the offence

(a) has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and
(b) does not pose an undue risk of harm to persons under the age of eighteen years.
Question of law

(7) For greater certainty, for the purposes of this section, it is a question of law whether any written material, visual representation or audio recording advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.
1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7; 2012, c. 1, s. 17; 2015, c. 23, s. 7.

CCC

2012 to 2015

On August 9, 2012, s. 163.1 was amended to increase the penalties as follows:

  • Making: Summary 90 days increased to 6 months
  • Distribution: Summary 90 days increased to 6 months
  • Possession: Indictable 45 days increased to 6 months / Summary 14 days increased to 90 days
  • Accessing: Indictable 45 days increased to 6 months / Summary 14 days increased to 90 days
  • Possession: Maximum 18 months increased to 2 years less a day
  • Accessing: Maximum 18 months increased to 2 years less a day

Starting August 9, 2012, s. 163.1 read:

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 person under the age of eighteen years that would be an offence under this Act; or
(d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.
Making child pornography

(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 is liable to imprisonment for a term not exceeding two years less a day and to a minimum punishment of imprisonment for a term of six months.
Distribution, etc. of child pornography

(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 is liable to imprisonment for a term not exceeding two years less a day and to a minimum punishment of imprisonment for a term of six months.
Possession of child pornography

(4) Every person who possesses any child pornography is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than five years and to a minimum punishment of imprisonment for a term of six months; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.
Accessing child pornography

(4.1) Every person who accesses any child pornography is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than five years and to a minimum punishment of imprisonment for a term of six months; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.
Interpretation

(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.

Aggravating factor

(4.3) If a person is convicted of an offence under this section, the court that imposes the sentence shall consider as an aggravating factor the fact that the person committed the offence with intent to make a profit.

Defence

(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 being under the age of eighteen years.

Defence

(6) No person shall be convicted of an offence under this section if the act that is alleged to constitute the offence

(a) has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and
(b) does not pose an undue risk of harm to persons under the age of eighteen years.
Question of law

(7) For greater certainty, for the purposes of this section, it is a question of law whether any written material, visual representation or audio recording advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.
1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7; 2012, c. 1, s. 17.

CCC

The changes from 2012 are underlined.

2005 to 2012

On November 1, 2005, Bill C-2 amended s.163.1 to include mandatory minimum penalties and change the definition of child pornography for written and audio materials.[1]

It also amended s. 163.1(6), in response to the decision of R v Sharpe by removing the common law public good defence and add the a defence on the basis that the acts "(1) had a legitimate purpose related to the administration of justice or to science, medicine, education or art; and (2) did not pose undue risk of harm to persons under the age of eighteen."On the same date mandatory minimums were added to the offences.

Starting November 1, 2005, s. 163.1 read:

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 person under the age of eighteen years that would be an offence under this Act; or
(d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.
Making child pornography

(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.
Distribution, etc. of child pornography

(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.
Possession of child pornography

(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.
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.
Interpretation

(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.

Aggravating factor

(4.3) If a person is convicted of an offence under this section, the court that imposes the sentence shall consider as an aggravating factor the fact that the person committed the offence with intent to make a profit.

Defence

(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 being under the age of eighteen years.

Defence

(6) No person shall be convicted of an offence under this section if the act that is alleged to constitute the offence

(a) has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and
(b) does not pose an undue risk of harm to persons under the age of eighteen years.
Question of law

(7) For greater certainty, for the purposes of this section, it is a question of law whether any written material, visual representation or audio recording advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.
1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7.

CCC

The changes from 2005 are underlined.

2002 to 2005

On July 23, 2002, the offence of accessing child pornography was added as well as the forfeiture provisions.

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; or
(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.
Making child pornography

(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; or
(b) an offence punishable on summary conviction.
Distribution, etc. of child pornography

(3) Every person who transmits, makes available, distributes, sells, imports, exports or possesses for the purpose of transmission, making available, distribution, sale or exportation any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
Possession of child pornography

(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; or
(b) an offence punishable on summary conviction.
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; or
(b) an offence punishable on summary conviction.
Interpretation

(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.

Defence

(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 being under the age of eighteen years.

Defences

(6) Where the accused is charged with an offence under subsection (2), (3), (4) or (4.1), the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.

Other provisions to apply

(7) Subsections 163(3) to (5) apply, with such modifications as the circumstances require, with respect to an offence under subsection (2), (3), (4) or (4.1).
1993, c. 46, s. 2; 2002, c. 13, s. 5.

CCC

Parent or Guardian Procuring Sexual Activity


Parent or Guardian Procuring Sexual Activity
s. 170 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Judicial Release Only
Indictable Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum 1 year incarceration
Maximum 14 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to parent or guardian procuring sexual activity are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 170 [parent or guardian procuring sexual activity] Indictable Offence(s) N/A OK Symbol.png OK Symbol.png (14 years max)

Offences under s. 170 [parent or guardian procuring sexual activity] are straight indictable. There is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 170 [parent or guardian procuring sexual activity] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 170 [parent or guardian procuring sexual activity] , the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 170 [parent or guardian procuring sexual activity] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Section s. 170 [parent or guardian procuring sexual activity] offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 170 [parent or guardian procuring sexual activity] OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 170 [parent or guardian procuring sexual activity] are designated offences eligible for wiretap under s. 183.

Offences under s. 170 [parent or guardian procuring sexual activity] are "designated" offences under s. 752 for dangerous offender applications.

Offences under s. 170 [parent or guardian procuring sexual activity] are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Parent or guardian procuring sexual activity

170. Every parent or guardian of a person under the age of 18 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 to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.

R.S., 1985, c. C-46, s. 170; R.S., 1985, c. 19 (3rd Supp.), s. 5; 2005, c. 32, s. 9.1; 2008, c. 6, s. 54; 2012, c. 1, s. 19; 2015, c. 23, s. 8.

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving parent or guardian procuring sexual activity under s. 170 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit was a parent or guardian of a person;
  5. the person is under the age of 18 years;
  6. the culprit procures the person;
  7. the purpose of the prohibited act was to engage "in any sexual activity prohibited by this Act with a person; and
  8. the person is not a parent or guardian.

Interpretation

Under s. 150, for the purposes of Part V, "guardian" includes "an person who has in law or in fact the custody or control of another person".[2]


Procuring

See Procuring and Living on the Avails of Prostitution (Repealed Offence)#Procuring

"Procure" is found in s. 212 (repealed).

  1. See Legislative History of Bill C-2
  2. see s. 150, R.S., c. C-34, s. 138.

Evidence

Modification of Rules of Evidence

For offences under this section (s. 170):

Limitations on Admissibility of Evidence

For offences under this section (s. 170):

  • prior sexual history of the complainant "is not admissible to support an inference that...by reason of the sexual nature of that activity, the complainant...is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or... is less worthy of belief.": see Evidence of complainant’s sexual activity under s. 276.
  • any "evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.": See reputation evidence under s. 277.
Restrictions on Disclosure

For offences under this section (s. 170), the Crown cannot disclose any records attracting a "reasonable expectation of privacy" that relate "to a complainant or a witness" unless applied for through the process described in s. 278.2 to 278.91: see s. 276.

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles on sentence for sexual offences, see Sexual Offences
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 170 [parent or guardian procuring sexual activity] N/A 14 years incarceration

Offences under s. 170 [parent or guardian procuring sexual activity] are straight indictable. The maximum penalty is 14 years incarceration.

Minimum Penalties
Offence(s) Crown
Election
Minimum Penalty
First Offence
Minimum Penalty
Subsequent Offence
s. 170 [parent or guardian procuring sexual activity] N/A 1 year custody Same

For offences under s. 170 [parent or guardian procuring sexual activity] there is a mandatory minimum penalty of 1 year incarceration.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 170 [parent or guardian procuring sexual activity] N/A X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 170 have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

Consecutive Sentences

Under s. 718.3(7), where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence must be consecutive where:

  • one of the sexual offences against that child is an offence relating to child pornography under s. 163.1. (see s. 718.3(7)(a)); or
  • each of the sexual offences against a child, other than a child pornography offence, related to a different child. (see s. 718.3(7)(a))

[note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]

Principles

Young Victim

Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years,... shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).

Ranges

see also: Parent or Guardian Procuring Sexual Activity (Sentencing Cases)

Ancillary Sentencing Orders

Offence-related Orders

Order Conviction Description
DNA Orders s. 170
SOIRA Orders s. 170(a), (b)
  • On conviction under s. 170(a), as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years where the offence has been "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years" (s. 490.013(2)(a))) or 20 years where the offence has a "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b)).
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order), 10 years (if 20 year order), or 20 year (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

  • On conviction under s. 170(b), as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years as the offence was "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years".
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order) or 20 years (if life order)

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Section 161 Orders s. 170
  • If convicted under s. 170, the judge may make discretionary 161 Order.
Delayed Parole Order s. 170
  • Periods of imprisonment of 2 years or more for convictions under s. 170 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 170 [parent or guardian procuring sexual activity] are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. Exception is made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference is less than 5 years.

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also

History of Parent or Guardian Procuring Sexual Activity

History

See also: List of Criminal Code Amendments and Parent or Guardian Procuring Sexual Activity (Offence)

2015 to present

On July 17, 2015, the Tougher Penalties for Child Predators Act (Bill C-26) came into force resulting in an increase of the minimum and maximum penalties. The minimum for victims between 16 and 18 years of age was increased from 6 months to 1 year. The maximum for all forms of the offence were increased from 10 years (victims under 16) and 5 years (victims between 16 and 18) to 14 years.

Parent or guardian procuring sexual activity

170. Every parent or guardian of a person under the age of 18 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 to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.

R.S., 1985, c. C-46, s. 170; R.S., 1985, c. 19 (3rd Supp.), s. 5; 2005, c. 32, s. 9.1; 2008, c. 6, s. 54; 2012, c. 1, s. 19; 2015, c. 23, s. 8.

CCC

Changes from 2015 are underlined.

2012 to 2015

On August 9, 2012, s. 170 was amended to read as follows:

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 of not more than 10 years and to a minimum punishment of imprisonment for a term of one year if the person procured is under the age of 16 years; or
(b) to imprisonment for a term of not more than five years and to a minimum punishment of imprisonment for a term of six months if the person procured is 16 years of age or more but under the age of 18 years.

R.S., 1985, c. C-46, s. 170; R.S., 1985, c. 19 (3rd Supp.), s. 5; 2005, c. 32, s. 9.1; 2008, c. 6, s. 54; 2012, c. 1, s. 19.

CCC

Changes from 2012 are underlined.

2008 to 2012

On February 28, 2008, s. 170 was amended to read:

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.

R.S., 1985, c. C-46, s. 170; R.S., 1985, c. 19 (3rd Supp.), s. 5; 2005, c. 32, s. 9.1; 2008, c. 6, s. 54.

CCC

Changes from 2008 are underlined.

2005 to 2008

On November 1, 2005, s. 170 was amended to read:

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 fourteen 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 fourteen years of age or more but under the age of eighteen years.

R.S., 1985, c. C-46, s. 170; R.S., 1985, c. 19 (3rd Supp.), s. 5; 2005, c. 32, s. 9.1.

CCC

Changes from 2005 are underlined.

1985 to 2005

Parent or guardian procuring sexual activity

170. Every parent or guardian of a person under the age of eighteen years who procures that 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 to imprisonment for a term not exceeding five years, if the person procured for that purpose is under the age of fourteen years, or to imprisonment for a term not exceeding two years if the person so procured is fourteen years of age or more but under the age of eighteen years.
R.S., 1985, c. C-46, s. 170; R.S., 1985, c. 19 (3rd Supp.), s. 5.

CCC

Householder Permitting Sexual Activity


Householder Permitting Sexual Activity
s. 171 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Judicial Release Only
Indictable Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum 1 year incarceration
Maximum 14 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to householder permitting sexual activity are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 171 [householder permitting sexual activity]
July 17, 2015 to present
Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (14 years max)
s. 171 [householder permitting sexual activity]
Until July 16, 2015
Hybrid Offence(s) X Mark Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) OK Symbol.png (14 years max)

Offences under s. 171 [householder permitting sexual activity] are straight indictable. There is a Defence election of Court under s. 536(2).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 171 [householder permitting sexual activity] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 171 [householder permitting sexual activity], the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 171 [householder permitting sexual activity] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Section s. 171 [householder permitting sexual activity] offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 171 [householder permitting sexual activity] OK Symbol.png OK Symbol.png OK Symbol.png (varies) X Mark Symbol.png

Offences under s. 171 are designated offences eligible for wiretap under s. 183.

Offences under s. 171 are "designated" offences under s. 752 for dangerous offender applications.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Householder permitting prohibited 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 18 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 to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.

R.S., 1985, c. C-46, s. 171; R.S., 1985, c. 19 (3rd Supp.), s. 5; 2005, c. 32, s. 9.1; 2008, c. 6, s. 54; 2012, c. 1, s. 20; 2015, c. 23, s. 9.

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving householder permitting sexual activity under s. 171 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit is an "owner, occupier or manager" of a premises or "has control of premises or assists in the management or control of premises";
  5. the culprit permits a person to resort to or to be in or on the premises for the purpose of engaging in any sexual activity;
  6. the person is under the age of 18 years;
  7. the prohibited sexual activity is prohibited under the Criminal Code; and
  8. the culprit does the prohibited conduct knowingly.

Interpretation of the Offence

Evidence

Modification of Rules of Evidence

For offences under this section (s. 171):

Limitations on Admissibility of Evidence

For offences under this section (s. 171):

  • prior sexual history of the complainant "is not admissible to support an inference that...by reason of the sexual nature of that activity, the complainant...is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or... is less worthy of belief.": see Evidence of complainant’s sexual activity under s. 276.
  • any "evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.": See reputation evidence under s. 277.
Restrictions on Disclosure

For offences under this section (s. 171), the Crown cannot disclose any records attracting a "reasonable expectation of privacy" that relate "to a complainant or a witness" unless applied for through the process described in s. 278.2 to 278.91: see s. 276.

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles on sentence for sexual offences, see Sexual Offences
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 171 [householder permitting sexual activity]
July 17, 2015 to present
N/A 14 years incarceration
s. 171 [householder permitting sexual activity]
victim under 14 years
Until July 16, 2015
N/A 5 years incarceration
s. 171 [householder permitting sexual activity]
victim under 18 years
Until July 16, 2015
N/A 2 years incarceration

Offences under s. 171 [householder permitting sexual activity] are straight indictable. The maximum penalty is 14 years incarceration.

Minimum Penalties
Offence(s) Crown
Election
Minimum Penalty
First Offence
Minimum Penalty
Subsequent Offence
s. 171 [householder permitting sexual activity]
July 17, 2015 to present
N/A 1 year incarceration Same
s. 171 [householder permitting sexual activity], victims under age 16
July 2, 2008 to July 17, 2015
N/A 6 months incarceration Same
s. 171 [householder permitting sexual activity], victims under age 18, but no less than 16
July 2, 2008 to July 17, 2015
N/A 45 days incarceration Same
s. 171 [householder permitting sexual activity], victims under age 14
November 1, 2005 to July 1, 2008
N/A 6 months incarceration Same
s. 171 [householder permitting sexual activity], victims under age 18, but no less than 14
November 1, 2005 to July 1, 2008
N/A 45 days incarceration Same

For offences under s. 171 [householder permitting sexual activity] there is a mandatory minimum penalty of 1 year incarceration.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 171 [householder permitting sexual activity]
Fomr November 1, 2005 to present
N/A X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 171 have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

Consecutive Sentences

Under s. 718.3(7), where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence must be consecutive where:

  • one of the sexual offences against that child is an offence relating to child pornography under s. 163.1. (see s. 718.3(7)(a)); or
  • each of the sexual offences against a child, other than a child pornography offence, related to a different child. (see s. 718.3(7)(a))

[note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]

Principles

Young Victim

Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years,... shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).

Ranges

see also: Householder Permitting Sexual Activity (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 171(a)
SOIRA Orders s. 171(a)
  • On conviction under s. 171(a), as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years as the offence was "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years".
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order) or 20 years (if life order)

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Section 161 Orders s. 171(a)
  • If convicted under s. 171(a), the judge may make discretionary 161 Order.
Delayed Parole Order s. 171
  • Periods of imprisonment of 2 years or more for convictions under s. 171 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.
==Record Suspensions and Pardons== 

Convictions under s. 171 [householder permitting sexual activity] are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. Exception is made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference is less than 5 years.

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

History of Householder Permitting Sexual Activity

History

See also: List of Criminal Code Amendments and Householder Permitting Sexual Activity (Offence)

2015 to present

On July 17, 2015, the Tougher Penalties for Child Predators Act (Bill C-26) came into force resulting in an increase of the minimum and maximum penalties. For offences against victims under the age of 16, the minimum increased from 6 months to 1 year and the maximum increased from 5 years to 14 years. For offences against victims between 16 and 18 years of age, the minimum 90 days increased to 1 year and maximum of 2 years increased to 14 years.

Householder permitting prohibited 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 18 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 to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.
R.S., 1985, c. C-46, s. 171; R.S., 1985, c. 19 (3rd Supp.), s. 5; 2005, c. 32, s. 9.1; 2008, c. 6, s. 54; 2012, c. 1, s. 20; 2015, c. 23, s. 9.

CCC

Changes from 2015 underlined.

2012 to 2015

On August 9, 2012, part of the Safe Streets and Communities Act 2012, c. 1 (Bill C-10) came into force modifying s. 171 to read:

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 90 days if the person is 16 years of age or more but under the age of 18 years.

R.S., 1985, c. C-46, s. 171; R.S., 1985, c. 19 (3rd Supp.), s. 5; 2005, c. 32, s. 9.1; 2008, c. 6, s. 54; 2012, c. 1, s. 20.

CCC

Changes from 2012 are underlined.

2008 to 2012

On July 2, 2008, parts of Tackling Violent Crime Act, 2008, c. 6 (C-2) came into force, modifying s. 171 to read as follows:

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.

R.S., 1985, c. C-46, s. 171; R.S., 1985, c. 19 (3rd Supp.), s. 5; 2005, c. 32, s. 9.1; 2008, c. 6, s. 54.

CCC

Changes from 2008 underlined.

2005 to 2008

On November 1, 2005, part of An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, 2005, c. 32 (Bill C-2) came into force, amending s. 171 to read:

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 fourteen 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 fourteen years of age or more but under the age of eighteen years.

R.S., 1985, c. C-46, s. 171; R.S., 1985, c. 19 (3rd Supp.), s. 5; 2005, c. 32, s. 9.1.

CCC

Changes from 2005 underlined.

1985 to 2005

Householder permitting sexual activity

171. Every owner, occupier or manager of premises or 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 to imprisonment for a term not exceeding five years, if the person in question is under the age of fourteen years, or to imprisonment for a term not exceeding two years if the person in question is fourteen years of age or more but under the age of eighteen years.
R.S., 1985, c. C-46, s. 171; R.S., 1985, c. 19 (3rd Supp.), s. 5.

CCC

Making Sexually Explicit Materials Available to Child


Making Sexually Explicit Materials Available to Child
s. 171.1 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum 90 days incarceration
Maximum 2 years less a day incarceration
Indictable Dispositions
Avail. Disp. same as summary
Minimum 6 months incarceration
Maximum 14 years incarceration
Reference
Offence Elements
Sentence Digests


Overview

Offences relating to making sexually explicit materials available to child are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

The offence prohibits anyone form making "sexually explicit materials" available to a young person for an illegal purpose regardless of whether it is in person or over an electronic device.[1]

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 171.1 [making sexually explicit materials available to child] Hybrid Offence(s) OK Symbol.png Yes, if Crown proceeds by Indictment OK Symbol.png (14 years max)

Offences under s. 171.1 [making sexually explicit materials available to child] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 171.1 [making sexually explicit materials available to child] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 171.1 [making sexually explicit materials available to child], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 171.1 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

Section s. 171.1 [making sexually explicit materials available to child] offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 171.1 [making sexually explicit materials available to child] OK Symbol.png X Mark Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 171.1 [making sexually explicit materials available to child] are designated offences eligible for wiretap under s. 183.

Offences under s. 171.1 [making sexually explicit materials available to child] are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Making sexually explicit material available to child

171.1 (1) Every person commits an offence who transmits, makes available, distributes or sells sexually explicit material to

(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1) [sexual exploitation], section 155 [incest], 163.1 [child pornography], 170 [parent or guardian procuring sexual activity], 171 [householder permitting prohibited sexual activity] or 279.011 [trafficking in persons, under 18] or subsection 279.02(2) [material benefit from trafficking, under 18], 279.03(2) [withholding or destroying docs, under 18], 286.1(2) [obtaining sexual services for consideration — person under 18], 286.2(2) [material benefit from sexual services provided — person under 18] or 286.3(2) [procuring — person under 18];
(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 [sexual interference] or 152 [invitation to sexual touching], subsection 160(3) [bestiality in presence of or by child] or 173(2) [exposure to person under 16] or section 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm], 273 [aggravated sexual assault] or 280 [abduction of a person under 16] 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 [abduction of a person under 14] with respect to that person.
Punishment

(2) Every person who commits an offence under subsection (1) [making sexually explicit material available to child – forms of offence]

(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 six months; 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.

...
2012, c. 1, s. 21; 2014, c. 25, s. 8; 2015, c. 23, s. 10.
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving making sexually explicit materials available to a child under s. 171.1 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "transmits, makes available, distributes or sells" materials
  5. the materials are "sexually explicit"
  6. the culprit believes the recipient is under 18
  7. the prohibited act intends to groom or reduce the sexual inhibitions of the target (i.e. "facilitate")
  8. the purpose of reducing inhibitions was to commit an enumerated offence:
    1. under s. 171.1(1)(a), relating to a person under 18 years:
      1. sexual exploitation (153(1));
      2. incest (155);
      3. child pornography (163.1);
      4. parent or guardian procuring sexual activity (170);
      5. householder permitting sexual activity (171);
      6. trafficking of a person under the age of eighteen years (279.011);
      7. material benefit — trafficking of person under 18 years (279.02(2));
      8. withholding or destroying documents — trafficking of person under 18 years (279.03(2));
      9. Obtaining sexual services for consideration from person under 18 years (286.1(2));
      10. Material benefit from sexual services provided by person under 18 years (286.2(2));
      11. Procuring — person under 18 years (286.3(2));
    2. under s. 171.1(1)((b), relating to person under 16 years:
      1. sexual interference (151);
      2. invitation to sexual touching (152);
      3. Bestiality in presence of or by child (160(3));
      4. Exposure (173(2));
      5. sexual assault (271);
      6. sexual assault with a weapon or causing bodily harm (272);
      7. aggravated assault (273); or
      8. Abduction of person under sixteen (280);
    3. under s. 171.1(1)(c), relating to person under 14 years:
      1. Abduction of person under fourteen (281).

Interpretation of the Offence

This offence amounts to a form of grooming of a child similar to conduct that makes up the offence of child luring.

Presumptions

171.1
...

Presumption

(3) Evidence that the person referred to in paragraph (1)(a) [making sexually explicit material available to child – under 18 years], (b) [making sexually explicit material available to child – under 16 years] or (c) [making sexually explicit material available to child – under 14 years] was represented to the accused as being under the age of 18, 16 or 14 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.
...

2012, c. 1, s. 21.
[annotation(s) added]

CCC

Defences

171.1
...

No defence

(4) It is not a defence to a charge under paragraph (1)(a) [making sexually explicit material available to child – under 18 years], (b) [making sexually explicit material available to child – under 16 years] or (c) [making sexually explicit material available to child – under 14 years] that the accused believed that the person referred to in that paragraph was at least 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
...
2012, c. 1, s. 21.
[annotation(s) added]

CCC


"Intimate Images"

171.1
...

Definition of “sexually explicit material”

(5) In subsection (1) [making sexually explicit material available to child – forms of offence], “sexually explicit material” means material that is not child pornography, as defined in subsection 163.1(1) [definition of child pornography], and that is

(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 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 person’s genital organs or anal region or, if the person is female, her breasts;
(b) written material whose dominant characteristic is the description, for a sexual purpose, of explicit sexual activity with a person; or
(c) an audio recording whose dominant characteristic is the description, presentation or representation, for a sexual purpose, of explicit sexual activity with a person.

2012, c. 1, s. 21.
[annotation(s) added]

CCC

"transmits, makes available, distributes or sells"

See Definition of Terms Relating to Transactions and Transferences

Evidence

Modification of Rules of Evidence

For offences under this section (s. 172):

Limitations on Admissibility of Evidence

For offences under this section (s. 172):

  • prior sexual history of the complainant "is not admissible to support an inference that...by reason of the sexual nature of that activity, the complainant...is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or... is less worthy of belief.": see Evidence of complainant’s sexual activity under s. 276.
  • any "evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.": See reputation evidence under s. 277.
Restrictions on Disclosure

For offences under this section (s. 172), the Crown cannot disclose any records attracting a "reasonable expectation of privacy" that relate "to a complainant or a witness" unless applied for through the process described in s. 278.2 to 278.91: see s. 276.

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles on sentence for sexual offences, see Sexual Offences
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 171.1 [making sexually explicit materials available to child]
From July 16, 2015
Summary Election 6 months custody
s. 171.1 [making sexually explicit materials available to child]
From July 16, 2015
Indictable Election 2 years custody
s. 171.1 [making sexually explicit materials available to child]
June 22, 2007 to July 15, 2015
Summary Election 18 months custody
s. 171.1 [making sexually explicit materials available to child]
June 22, 2007 to Until July 15, 2015
Indictable Election 10 years custody

Offences under s. 171.1 are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is 6 months incarceration.

Minimum Penalties
Offence(s) Crown
Election
Minimum Penalty
First Offence
Minimum Penalty
Subsequent Offence
s. 171.1 [making sexually explicit materials available to child]
From July 16, 2015
Summary Election 90 days custody Same
s. 171.1 [making sexually explicit materials available to child]
From July 16, 2015
Indictable Election 6 months custody Same
s. 171.1 [making sexually explicit materials available to child]
August 9, 2012 to July 15, 2015
Summary Election 30 days custody Same
s. 171.1 [making sexually explicit materials available to child]
August 9, 2012 to July 15, 2015
Indictable Election 90 days custody Same
s. 171.1 [making sexually explicit materials available to child]
Until August 8, 2012
Any None Same

Offences under s. 171.1 [making sexually explicit materials available to child] have a mandatory minimum penalty of Template:Min90DaysH when prosecuted by indictment and 30 days jail when prosecuted by summary conviction.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 171.1 [making sexually explicit materials available to child] any X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 171.1 have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

Consecutive Sentences

Under s. 718.3(7), where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence must be consecutive where:

  • one of the sexual offences against that child is an offence relating to child pornography under s. 163.1. (see s. 718.3(7)(a)); or
  • each of the sexual offences against a child, other than a child pornography offence, related to a different child. (see s. 718.3(7)(a))

[note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]

Principles

Young Victim

Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years,... shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).

Ranges

see also: Making Sexually Explicit Materials Available to Child (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 171.1 [making sexually explicit materials available to child]
SOIRA Orders s. 171.1(a), (b), or (c)
  • On conviction under s. 171.1(a), (b), or (c), as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years as the offence was "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years".
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order) or 20 years (if life order)

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 171.1(1)(a) [making sexually explicit material available to child under 18 for purposes of listed offences], 171.1(1)(b) [making sexually explicit material available to child under 16 for purposes of listed offences], and 171.1(1)(c) [making sexually explicit material available to child under 14 for purposes of listed offences] are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. Exception is made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference is less than 5 years.

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also

History of Making Sexually Explicit Materials Available to Child

General Principles

See also: Making Sexually Explicit Materials Available to Child (Offence)

This offence was added to the Criminal Code on August 9, 2012.

2015 to Present

On July 16, 2015, the Tougher Penalties for Child Predators Act (Bill C-26) came into force resulting in an increase of the minimum and maximum penalties. [1] The minimum penalties for summary conviction increased from 30 days to 90 days. The maximum penalties increased from 6 months to 2 years less a day. The minimum penalties for indictable elections increased from 90 days to 6 months. The maximum penalties increased from 2 years to 14 years.

Making sexually explicit material available to child

171.1 (1) Every person commits an offence who transmits, makes available, distributes or sells sexually explicit material to

(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);
(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 271, 272, 273 or 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.
Punishment

(2) Every person who commits an offence under subsection (1)

(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 six months; 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.
Presumption

(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 18, 16 or 14 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.

No defence

(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 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.

Definition of sexually explicit material

(5) In subsection (1), sexually explicit material means material that is not child pornography, as defined in subsection 163.1(1), and that is

(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 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 person’s genital organs or anal region or, if the person is female, her breasts;
(b) written material whose dominant characteristic is the description, for a sexual purpose, of explicit sexual activity with a person; or
(c) an audio recording whose dominant characteristic is the description, presentation or representation, for a sexual purpose, of explicit sexual activity with a person.

2012, c. 1, s. 21; 2014, c. 25, s. 8; 2015, c. 23, s. 10.

CCC

The changes from 2015 are underlined.

2014 to 2015

Making sexually explicit material available to child

171.1 (1) Every person commits an offence who transmits, makes available, distributes or sells sexually explicit material to

(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);
(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 271, 272, 273 or 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.
Punishment

(2) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years and to a minimum punishment of imprisonment for a term of 90 days; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than six months and to a minimum punishment of imprisonment for a term of 30 days.
Presumption

(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 18, 16 or 14 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.

No defence

(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 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.

Definition of “sexually explicit material”

(5) In subsection (1), “sexually explicit material” means material that is not child pornography, as defined in subsection 163.1(1), and that is

(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 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 person’s genital organs or anal region or, if the person is female, her breasts;
(b) written material whose dominant characteristic is the description, for a sexual purpose, of explicit sexual activity with a person; or
(c) an audio recording whose dominant characteristic is the description, presentation or representation, for a sexual purpose, of explicit sexual activity with a person.

2012, c. 1, s. 21; 2014, c. 25, s. 8.

CCC

The changes from 2014 are underlined.

2012 to 2014

Making sexually explicit material available to child

171.1 (1) Every person commits an offence who transmits, makes available, distributes or sells sexually explicit material to

(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence under subsection 153(1), section 155, 163.1, 170 or 171 or subsection 212(1), (2), (2.1) or (4) 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 271, 272, 273 or 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.
Punishment

(2) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years and to a minimum punishment of imprisonment for a term of 90 days; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than six months and to a minimum punishment of imprisonment for a term of 30 days.
Presumption

(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 18, 16 or 14 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.

No defence

(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 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.

Definition of “sexually explicit material”

(5) In subsection (1), “sexually explicit material” means material that is not child pornography, as defined in subsection 163.1(1), and that is

(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 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 person’s genital organs or anal region or, if the person is female, her breasts;
(b) written material whose dominant characteristic is the description, for a sexual purpose, of explicit sexual activity with a person; or
(c) an audio recording whose dominant characteristic is the description, presentation or representation, for a sexual purpose, of explicit sexual activity with a person.

2012, c. 1, s. 21.

CCC

Child Luring


Child Luring
s. 172.1 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum 6 months incarceration
Maximum 2 years less a day incarceration
Indictable Dispositions
Avail. Disp. same as summary
Minimum 1 year incarceration
Maximum 14 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to child luring are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 172.1 [child luring] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) OK Symbol.png (14 years max)

Offences under s. 172.1 [child luring] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 172.1 [child luring] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 172.1 [child luring], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 172.1 [child luring] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Section s. 172.1 [child luring] offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 172.1 [child luring] OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 172.1 [child luring] are designated offences eligible for wiretap under s. 183.

Offences under s. 172.1 [child luring] are "designated" offences under s. 752 for dangerous offender applications.

Offences under s. 172.1 [child luring] are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Luring a child

172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with

(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1) [sexual exploitation], section 155 [incest], 163.1 [child pornography], 170 [parent or guardian procuring sexual activity], 171 [householder permitting prohibited sexual activity] or 279.011 [trafficking in persons, under 18] or subsection 279.02(2) [material benefit from trafficking, under 18], 279.03(2) [withholding or destroying docs, under 18], 286.1(2) [obtaining sexual services for consideration — person under 18], 286.2(2) [material benefit from sexual services provided — person under 18] or 286.3(2) [procuring — person under 18];
(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 [sexual interference] or 152 [invitation to sexual touching], subsection 160(3) [bestiality in presence of or by child] or 173(2) [exposure to person under 16] or section 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm], 273 [aggravated sexual assault] or 280 [abduction of a person under 16] 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 [abduction of a person under 14] with respect to that person.
Punishment

(2) Every person who commits an offence under subsection (1) [child luring – offence]

(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 six months.

[omitted (3) and (4)]
2002, c. 13, s. 8; 2007, c. 20, s. 1; 2008, c. 6, s. 14; 2012, c. 1, s. 22; 2014, c. 25, s. 9; 2015, c. 23, s. 11.
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XX of the Criminal Code.

Proof of the Offence

Proving child luring under 18 under s. 172.1(1)(a) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit communicated by means of telecommunication
  5. the culprit communicated to a person who
    1. is under the age of 18 or
    2. is believed to be under the age of 18
  6. if the accused believed the victim was 18 year or older, they must have failed to take "reasonable steps" to ascertain age;
  7. accused’s “specific purpose” in communicating is to facilitate the commission of a specified secondary offence with respect to the under-aged person being:
    1. sexual exploitation (153(1))
    2. incest (155),
    3. child pornography (163.1),
    4. parent or guardian procuring sexual activity (170),
    5. householder permitting sexual activity (171)
    6. trafficking in person under the age of 18 (279.011)
    7. material benefit from trafficking person under the age of 18 (279.02(2)),
    8. withholding or destroying documents of a trafficked person under the age of 18 (279.03(2)),
    9. obtaining sexual services from person under the age of 18 (286.1(2)),
    10. material benefit from sexual services of person under the age of 18 (286.2(2)) or
    11. Procuring a person under the age of 18 (286.3(2))

Proving child luring under 16 under s. 172.1(1)(b) should include:

  1. the culprit communicated by means of telecommunication
  2. the culprit communicated to a person who
    1. is under the age of 16 or
    2. is believed to be under the age of 16
  3. if the accused believed the victim was 16 year or older, they must have failed to take "reasonable steps" to ascertain age;
  4. accused’s “specific purpose” in communicating is to facilitate the commission of a specified secondary offence with respect to the under-aged person, being:
    1. Sexual Interference (151)
    2. Invitation to Sexual Touching (152),
    3. Bestiality in Presence of a Child (160(3))
    4. Indecent Act, Exposure (173(2))
    5. Sexual Assault (271),
    6. Sexual Assault with a Weapon or Causing Bodily Harm (272),
    7. Aggravated Sexual Assault (273) or