Conversion Therapy (Offence)

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This page was last substantively updated or reviewed January 2022. (Rev. # 79399)


Conversion Therapy
s. 320.102, 320.103, and 320.104 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.
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 2 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 (property)
5 years incarceration (person)
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to conversion therapy are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 320.102 [conversion therapy]
s. 320.103 [promoting or advertising]
s. 320.104 [material benefit]
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. 320.102 [conversion therapy], 320.103 [promoting or advertising] or 320.104 [material benefit]
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.

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. 320.102 [conversion therapy] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 320.103 [promoting or advertising] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 320.104 [material benefit] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 320.102 [conversion therapy], 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)).
Fingerprints and Photos

A peace officer who charges a person under s. 320.102 [conversion therapy] 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 Serious Criminality
Offence
s. 36 IRPA
s. 320.102 [conversion therapy] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png (under 10 years max) X Mark Symbol.png X Mark Symbol.png
s. 320.103 [promoting or advertising] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png (under 10 years max) X Mark Symbol.png X Mark Symbol.png
s. 320.104 [material benefit] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png (under 10 years max) X Mark Symbol.png X Mark Symbol.png

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

Offence Wording

Conversion therapy

320.102 Everyone who knowingly causes another person to undergo conversion therapy — including by providing conversion therapy to that other person — is

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

CCC


Note up: 320.102

Promoting or advertising

320.103 Everyone who knowingly promotes or advertises conversion therapy is

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

CCC


Note up: 320.103

Material benefit

320.104 Everyone who receives a financial or other material benefit, knowing that it is obtained or derived directly or indirectly from the provision of conversion therapy, is

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

CCC


Note up: 320.104

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
320.102 "..., contrary to section 320.102 of the Criminal Code.
320.103 "..., contrary to section 320.103 of the Criminal Code.
320.104 "..., contrary to section 320.104 of the Criminal Code.

Proof of the Offence

Proving conversion therapy under s. 320.102 should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. ...

Proving promoting or advertising under s. 320.103 should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. ...

Proving material benefit under s. 320.104 should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. ...

Interpretation of the Offence

Definition

Definition of conversion therapy

320.101 In sections 320.102 to 320.104 , conversion therapy means a practice, treatment or service designed to

(a) change a person’s sexual orientation to heterosexual;
(b) change a person’s gender identity to cisgender;
(c) change a person’s gender expression so that it conforms to the sex assigned to the person at birth;
(d) repress or reduce non-heterosexual attraction or sexual behaviour;
(e) repress a person’s non-cisgender gender identity; or
(f) repress or reduce a person’s gender expression that does not conform to the sex assigned to the person at birth.

For greater certainty, this definition does not include a practice, treatment or service that relates to the exploration or development of an integrated personal identity — such as a practice, treatment or service that relates to a person’s gender transition — and that is not based on an assumption that a particular sexual orientation, gender identity or gender expression is to be preferred over another.


CCC ,

Note up: 320.101

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. x [x]

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 264.1(1)(a) [treat to person]), 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 and factors of violence and assault-based offences, see Violent and Assaultive Offences

Sentencing Profile

Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 264.1(1)(a) [uttering threats, death or bodily harm]
s. 264.1(1)(b) [uttering threats, property damage]
s. 264.1(1)(c) [uttering threats, harm to animal]
Summary Conviction 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
(* 18 months prior to Sept 18, 2018)
s. 264.1(1)(a) [uttering threats, death or bodily harm] Indictable Conviction 5 years incarceration
s. 264.1(1)(b) [uttering threats, property damage]
s. 264.1(1)(c) [uttering threats, harm to animal]
Indictable Conviction 2 years incarceration

Offences under s. 264.1(2) or (3) are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration under s. 264.1(2) and 2 years incarceration under s. 264.1(3). If prosecuted by summary conviction, the maximum penalty is 18 months incarceration under s. 264.1(2) and 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) under s. 264.1(3).

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. 264.1 [uttering threats] 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

Range

see also: Uttering Threats (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 264.1 [uttering threats]
Weapons Prohibition Orders s. 264.1 [uttering threats]
  • On conviction under s. 264.1 [uttering threats] 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).
  • For offences under s. 264.1 [if weapon involved] where "the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance and, at the time of the offence, the person was prohibited" by court order, a mandatory weapons prohibition order under s. 109(1)(d) is required regardless of election.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. 110 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. 264.1 [uttering threats]
  • Periods of imprisonment of 2 years or more for convictions under s. 264.1 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 His Majesty the King 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. 264.1 [uttering threats] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended 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)

See Also

References