Sexual Exploitation (Offence)

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Sexual Exploitation
s. 153 and 153.1 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 6 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)
s. 153 [sexual exploitation] and
s. 153.1 [sexual exploitation of person with disability]
Hybrid Offence(s) Yes Yes, if Crown proceeds by Indictment

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

Section 727 notice prior to plea is required if Crown is relying upon increased duration on a subsequent s. 109 weapons prohibition order.

Release

Offence(s) Attendance Notice
Without Arrest

s. 496
Summons
Without Arrest
s. 497
Release By
Arresting Officer
On Attendance Notice
s. 497
Release By
Officer-in-Charge
On a Promise to Appear
Undertaking or Recognizance
s. 498
Release By
a Judge or Justice
on a PTA, Undertaking or Recog.

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

s. 2 ID Crim. Act
s. 153 and 153.1 OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 153 or 153.1, the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.

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)).

A peace officer who charges a person under s. 153 and 153.1 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 offences 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 and 153.1 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).

Offence Designations
Section s. 153 offences are "primary designated offences" under s. 752 for the purpose of a Dangerous Offender Order. The offender will be deemed a "substantial risk" for the purpose of a Long-Term Offender Order under s. 753.1.

Offences under s. 153.1 are "designated" offences under s. 752 for the purpose of 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)

(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.


CCC

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 and liable to imprisonment for a term not exceeding eighteen months.

...
1998, c. 9, s. 2.


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) 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]

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".[3]

Mens Rea
The mens rea consists of:[4]

  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 T.G.F., (1992), 55 O.A.C. 355 (C.A.)(*no link)
    R v G.B., 2009 BCCA 88 (CanLII) at para 27
  2. R v Hann 1992 CanLII 7133 (NL CA), (1992), 75 CCC (3d) 355 (N.L.C.A.) ("...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 King, 2012 ABQB 57 (CanLII)
  4. R v Careen, 2013 BCCA 535 (CanLII), 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, at para 35
  2. R v Caskenette, 1993 CanLII 6879 (BC CA), (1993), 80 CCC (3d) 439 - Accused testified that he was not regularly on the work site
  3. R v McLachlan, 2012 SKCA 74 (CanLII) - suggests absent exceptional circumstances they will be persons in authority R v V.K. [2001] O.J. No. 2317(*no link) - music tutor found to be in position of authority
  4. R v V.K., supra
  5. R v Aird, 2013 ONCA 447 (CanLII) at para 28
    R v Audet, supra
  6. R v Galbraith (1994), 1994 CanLII 215 (ON CA), 90 C.C.C. (3d) 76 (Ont. C.A.) at para. 18
    R v Blackmore, 2017 BCSC 192 (CanLII) 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 G.B., 2009 BCCA 88 (CanLII) at paras 27 to 29

Sexual Exploitation

The meaning of "exploitive relationship" is largely determined by the scope of the other types of relationships set for in ss. (1.2).[1]

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."[2]

The key factor to "exploitation" is the presence of a power imbalance.[3]

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.[4]

It has been suggested that signs of exploitation include:[5]

  • 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.[6]

  1. R v Anderson, 2009 PECA 4 (CanLII) at para 67
  2. R v Anderson at para 68
  3. R v Damaso, 2013 ABCA 79 (CanLII) at para 29, 30
  4. R v Woodward, 2011 ONCA 610 (CanLII) at para 40-42 - in reference to a sentencing for luring
  5. R v G(C), 1994 CanLII 215 (ON CA), (1994), 90 CCC (3d) 76 at para 15
  6. R v Beckers, 2012 ONSC 6709 (CanLII) at para 128

Consent in Relation to Person with Disability

See also: Consent in Sexual Offences

153.1. ...
Definition of “consent”
(2) Subject to subsection (3), “consent” means, for the purposes of this section, the voluntary agreement of the complainant to engage in the sexual activity in question.

When no consent obtained
(3) No consent is obtained, for the purposes of this section, if

(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to the activity;
(c) the accused counsels or incites the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

Subsection (3) not limiting
(4) Nothing in subsection (3) 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 the accused’s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(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.

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.


CCC

Evidence

As an enumerated offence under s. 274, 275, 276, 277, and 278.2 the following additional evidentiary rules apply:

  • Corroboration is not required for conviction and the judge cannot instruct on need for corroboration (s. 274);
  • common law rules relating to "recent complaint" do not apply for this offence (s. 275);
  • 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." (s. 276);
  • any evidence of sexual activity other than the "activity that forms the subject-matter of the charge" must be admitted through a s. 276 application (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." (s. 277);
  • "no record relating to a complainant or a witness" shall be disclose to the accused except in accordance with a production application under s. 278.3 to 278.91 (s. 278.2).

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 link) 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
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
There are no statutory requirements that the sentences be consecutive.

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: 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 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 mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (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(!) 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.

History

See also: List of Criminal Code Amendments

See Also

References