Householder Permitting Sexual Activity (Offence): Difference between revisions
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[[fr:Maître de maison qui permet des actes sexuels interdits (infraction)]] | |||
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{{OffenceBox | {{OffenceBox | ||
|OffenceTitle=Householder Permitting Sexual Activity | |OffenceTitle=Householder Permitting Sexual Activity | ||
|OffencePage=Householder Permitting Sexual Activity | |OffencePage=Householder Permitting Sexual Activity | ||
|Section=171 |Act={{OBCCC}} | |Section=171 | ||
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|CrownElection={{OBIndictableElection}} | |CrownElection={{OBIndictableElection}} | ||
|Jurisdiction={{OBJurisdictionAll14Above}} | |Jurisdiction={{OBJurisdictionAll14Above}} | ||
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; Release | ; Release | ||
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|s. 171 {{DescrSec|171}}|| {{ | |s. 171 {{DescrSec|171}}|| {{ReleaseProfile-Indictable}} | ||
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{{ReleaseEnd}} | {{ReleaseEnd}} | ||
{{ | {{ReleaseOptions-Indictable|s. 171 {{DescrSec|171}}}} | ||
:''<u>Reverse Onus Bail</u>'' | :''<u>Reverse Onus Bail</u>'' | ||
{{ReverseOnusCirc}} | {{ReverseOnusCirc}} | ||
:'' | :''Fingerprints and Photos'' | ||
{{IDCriminalAct|s. 171 {{DescrSec|171}}}} | {{IDCriminalAct|s. 171 {{DescrSec|171}}}} | ||
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==Offence Wording== | ==Offence Wording== | ||
{{ | {{quotation2| | ||
; Householder permitting prohibited sexual activity | ; 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. | 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. | ||
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{{LegHistory10s|2012, c. 1}}, s. 20; | {{LegHistory10s|2012, c. 1}}, s. 20; | ||
{{LegHistory10s|2015, c. 23}}, s. 9. | {{LegHistory10s|2015, c. 23}}, s. 9. | ||
| | |{{CCCSec2|171}} | ||
|{{NoteUp|}} | |{{NoteUp|171}} | ||
}} | }} | ||
===Draft Form of Charges=== | ===Draft Form of Charges=== | ||
{{seealso|Draft Form of Charges}} | {{seealso|Draft Form of Charges}} | ||
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| 171 | |||
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| | |"{{ellipsis1}} | ||
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|171}}. | |||
{{DraftEnd}} | {{DraftEnd}} | ||
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==Participation of Third Parties== | ==Participation of Third Parties== | ||
{{seealso|Role of the Victim and Third Parties|Testimonial Aids for Young, Disabled or Vulnerable Witnesses}} | {{seealso|Role of the Victim and Third Parties|Testimonial Aids for Young, Disabled or Vulnerable Witnesses}} | ||
; Complainant Privacy Rights in Sexual Offences | |||
{{CPR-SexOffences}} | |||
; Testimonial Aids | ; Testimonial Aids |
Latest revision as of 18:45, 3 September 2024
Householder Permitting Sexual Activity | |
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s. 171 of the Crim. Code | |
Election / Plea | |
Crown Election | Indictment |
Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
Indictable Dispositions | |
Avail. Disp. |
|
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.
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:
|
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
Ancillary Sentencing Orders
- Offence-specific Orders
Order | Conviction | Description |
---|---|---|
DNA Orders | s. 171(a) |
|
SOIRA Orders | s. 171(a) |
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) |
|
Delayed Parole Order | s. 171 |
|
- 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
|
- Level Zero
- Criminal Law
- Sentencing
- Offences
- Wiretap Eligible Offences
- 1985, c. C-46
- 1985, c. 19 (3rd Supp.)
- 2005, c. 32
- 2008, c. 6
- 2012, c. 1
- 2015, c. 23
- Offences Requiring Notice to Victim
- Offences with Maximum Penalty of 14 Years
- Offences with Maximum Penalty of 5 Years
- Offences with Maximum Penalty of 2 Years
- Straight Indictable Offences
- Offences with Minimum Penalty of 1 Year
- Offences with Minimum Penalty of 6 Months
- Offences with Minimum Penalty of 45 Days
- Offences with Mandatory Minimums
- Secondary Designated Offences for DNA Orders
- SOIRA Designated Offences
- Section 161 Prohibition Offences
- Delayed Parole
- Sexual Offences