Householder Permitting Sexual Activity (Offence)

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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.
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)			(14 years max)
s. 171 [householder permitting sexual activity] Until July 16, 2015	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(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]

When charged under s. 171 [householder permitting sexual activity], the accused can be given a judicial summons without arrest. 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 weapon, being 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)).

And, regardless of Crown election, if the offence alleged was one:

• where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
• where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
• where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

Fingerprints 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	Serious Criminality Offence s. 36 IRPA
s. 171 [householder permitting sexual activity]			(varies)

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 (CanLII), (DOJ)

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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
171		"... being the owner, occupier or manager of a premises—or any other person who has control of a premises or assists in the management or control of a premises—who knowingly permits A.B., 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 with C.D., to wit: [particulars], contrary to section 171 of the Criminal Code.

Proof of the Offence

Proving householder permitting sexual activity under s. 171 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ 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"; ☐ 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; ☐ the person is under the age of 18 years; ☐ the prohibited sexual activity is prohibited under the Criminal Code; and ☐ the culprit does the prohibited conduct knowingly.

Interpretation of the Offence

Evidence

Modification of Rules of Evidence

For offences under this section (s. 171):

• corroboration is not required for conviction and the judge cannot instruct on need for corroboration: see Corroboration under s. 274.
• common law rules relating to "recent complaint" do not apply: see Credibility under s. 275.

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.

Holdback of Disclosure

For offences under this section (s. 171), s. 278.2 prevents the Crown from disclosing 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. 278.3 to 278.91: see Production of Records for Sexual Offences. Should the privacy-holder agree to waive their privacy rights, the protected materials may be disclosed.

Participation of Third Parties

Complainant Privacy Rights in Sexual Offences

A complainant has a right to be notified of any party seeking to admit any evidence of sexual activity other than the activity making up the alleged offence.

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) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. 171 [householder permitting sexual activity]

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

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

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

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 171(a)	For conviction under s. 171(a), a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).
SOIRA Orders	s. 171(a)	On conviction under s. 171(a), a "primary offence" listed as under s. 490.011(1)(a), a SOIRA Order is presumed mandatory unless "there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring [registration]" or "the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by [registration]". If the offender was previously convicted of a "primary offence" the duration is life (s. 490.012(2)) 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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

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. An exception can be 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 between victim and offender is less than 5 years.

History

• History of Householder Permitting Sexual Activity (Offence)