Canadian Criminal Law/Offences/Sexual Offences/Print version

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Contents

Contents[edit]

Elements of Offence[edit]

Consent[edit]

General Principles for Consent[edit]

The absence of consent is determined on a subjective standard at the time the touching occurs. It is a question of fact determined by the trier-of-fact based on the entirety of the circumstances and the credibility of the victim.[1]

Under s. 265(3), all forms of assault, including sexual assault under 271, 272, and 273[2] cannot be consented when the following exists:

s. 265...
Consent
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.


CCC

Consensual Fight[edit]

A consensual fight is not an assault as the parties are consenting to the physical contact. [3] Consent can be negated or vitiated where the force causes bodily harm and was intended to be caused.[4] Thus, where serious bodily harm was intended and caused, there can be no consent.[5] The necessary mens rea requires that the force be applied recklessly and the risk of bodily harm was objectively foreseeable.[6]

  1. R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330
  2. this is by function of s.273.1
  3. R. v. Jobidon, [1991] 2 S.C.R. 714 [1]
  4. R. v. Paice, 2005 SCC 22
    R. v. W.G. 1994 90 CCC 3d 139 Ont.C.A.
    R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714 at p. 22, 23
    See R. v. Crosby 2005 PESCAD 1, (2005), 27 C.R. (6th) 39, 192 C.C.C. (3d) 23 (PEI Ct. of App.) during a fist fight, consent is not vitiated unless accused intended to inflict bodily harm
  5. R. v. Sullivan, 2011 NLCA 6 at 13
  6. Sullivan at 24

Consent in Sports[edit]

While normally a person cannot consent to an assault that intends to cause bodily harm, there is an exception to this for sports where the conduct is part of the norms of the particular sport.[1] Thus sports players may consent to some bodily harm necessarily incidental to the sport. However, conduct that is deliberately for the purpose of inflicting injury will not be protected.[2]

  1. Jobidon, [1991] 2 SCR 714
  2. R v Leclerc, (1991) 67 CCC (3d) 563

Consent in domestic assaults[edit]

There is a degree of implied consent in certain social interactions such as domestic partnerships.[1]

Consent can be used in a limited fashion for a defence to a domestic assault. There must be virtual no injury to the victim. Any injury that occurs can only be justified as an accident and not an intentional assault.

Intentional force intended to cause bodily harm automatically negate any consent.[2] Courts have highly resistant to recognizing consent to an assault between partners.[3]

  1. R. v. Menkarios 2010 ONSC 5478 at para. 38
  2. R. v. Shand (1998), 166 N.S.R. (2d) 74 (N.S.C.A.)
  3. R. v. Downey, [2002] N.S.J. No. 442 (N.S.S.C.)
    R. v. Lewis, [2004] O.J. No. 3059 (Ont. C.J.)
    R. v. Swaine, [1999] O.J. No. 3457 (Ont. C.J.)
    R. v. Tierney, [1994] P.E.I.J. No. 118 (P.E.I.S.C.T.D.)
    R. v. Allum, [1996] A.J. No. 360 (Alta.P.C.)
    R. v. Stewart, [1996] O.J. No. 2704 (Ont.C.J.)
    R. v. Abraham (1974),30 C.C.C. (2d) 332 (Que.C.A.)
    R. v. Bruce, [1995] B.C.J. No. 212 (B.C.C.A.)
    R. v. C.M.C., [1996] B.C.J. No. 2545 (B.C.P.C.)

Fraud[edit]

The failure of the accused to disclose that they are HIV positive before sex can vitiate any consent for sex that the victim gave.[1]

  1. R v Cuerrier, (1998) 127 CCC (3d) 1
    R. v. Mabior, 2012 SCC 47 (CanLII)

General Consent for Sexual Offences[edit]

Section 273.1 states:

Meaning of “consent”
273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
Where no consent obtained
(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where

(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 induces 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 (2) not limiting
(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.
1992, c. 38, s. 1.
Where belief in consent not a defence
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

(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.

1992, c. 38, s. 1.


CCC

If the trial judge believes the complainant subjectively did not consent, the Crown has proved the absence of consent. The accused’s view of the complainant’s conduct is not relevant to whether the actus reus has been established. [1]

If a victim is unconscious then the crown may prove lack of consent by circumstantial evidence. [2]

While not required, for such evidence to be probative, some expert evidence is often necessary. [3]

As for capacity to consent, courts can infer a lack of capacity where there is direct evidence that:[4]

  1. the complainant was extremely intoxicated;
  2. the complainant was asleep or unconscious when the sexual touching commenced; or
  3. the complainant was asleep or unconscious during all of the sexual touching (B.S.B., supra at para. 45).
  1. R v Ewanchuk, 1999 CanLII 711 at para. 29
  2. R. v. J.R., [2006] O.J. No. 2698 (S.C.)
  3. J.R., supra; R. v. B.S.B., 2008 BCSC 917, affirmed 2009 BCCA 520
  4. R. v. C.A., 2010 YKSC 32

Intoxication[edit]

The capacity to consent requires more than simply the “baseline physical functions”.[1]

Drunkeness is not the same as incapacity.[2] Poor decision making, memory loss, or loss of inhibition or self-control due to alcohol does not negate consent.[3] An intoxicated complainant may still have the ability to consent.[4]

Where alcohol may have vitiated consent, it may be best established by way of expert evidence.But it is not necessary as a matter of law.[5]

Consent may be vitiated by abusing a position of trust, power or authority. [6]

However, any threats or abuse that occurs after the event cannot go towards vitiation of consent.[7]

  1. R. v. Haraldson, 2012 ABCA 147 at 7
  2. R. v. Jensen 1996 CanLII 1237 (ON CA), (1996), 106 C.C.C. (3d) 430 (Ont. C.A.)
  3. R. v. Merritt, [2004] O.J. No. 1295 (Ont. S.C.J.)
  4. R. v. R.(J) 2006 CanLII 22658 (ON SC), (2006), 40 C.R. (6th) 97 (Ont. S.C.J.) at paras. 17‑19, 43
  5. R. v. Faulkner 1997 CanLII 1193 (ON CA), (1997), 120 C.C.C. (3d) 377 (Ont. C.A.))
    R. v. Merritt, [2004] O.J. No. 1295 (Ont. S.C.J.)
    R. v. Hernandez, [1997] A.J. No. 955 (Alta. C.A.)
    R. v. Cedeno, 2005 ONCJ 91 (CanLII), 2005 ONCJ 91, 195 C.C.C. (3d) 468 at para. 18
  6. R. v. Asfour, 2006 CanLII 577 (ON CA)
  7. Asfour

Honest but mistaken belief in Consent[edit]

The defence of honest but mistaken belief of consent creates a third alternative to the choice between whether the alleged victim consented to the sexual contact.

The defence is available where there is evidence of a "denial of consent, lack of consent or incapacity to consent" which is interpreted as consent, as well as "evidence of ambiguity or equivocality" showing the possibility of mistaken belief without being wilfully blind or reckless.[1]

Thus, the defence requires:

  1. evidence that the accused believed the complainant was consenting;
  2. evidence that the complainant in fact refused consent, did not consent, or was incapable of consenting; and
  3. evidence of a state of ambiguity which explains how lack of consent could have been honestly understood by the defendant as consent, assuming he was not wilfully blind or reckless to whether the complainant was consenting, that is, assuming that he paid appropriate attention to the need for consent and to whether she was consenting or not.
  1. R. v. Esau, [1997] 2 S.C.R. 777 at para. 79, 88

Vitiating Consent by Fraud[edit]

Where "deception causes a misunderstanding as to the nature of the act itself there is no legally recognized consent because what happened is not that for which consent was given"[1]Consent that is not based on a knowledge of the significant relevant factors in not valid.[2]

  1. R v Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371 Cory J., at para 99
  2. R v Cuerrier 1998 CanLII 796 at para. 127

Consent for under 16 years of age[edit]

There are however sex acts involving persons under 18 years of age that are not criminal. Typically, they can be permitted where there is consent. The key rules are essentially as follows:

  • Persons who are 12 or 13 can consent to sex with persons no more than two years their elder and not in a position of trust (s150.1(2))
  • Persons who are 14 or 15 can consent to sex with persons no more than five years their elder and not in a position of trust. Or they can consent if married. (s150.1(2.1))
  • Persons aged 16 and above can consent as an adult.

Consent no defence
150.1 (1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under section 271, 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.
Exception — complainant aged 12 or 13
(2) When an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is 12 years of age or more but under the age of 14 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused

(a) is less than two years older than the complainant; and
(b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.

Exception — complainant aged 14 or 15
(2.1) When an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if

(a) the accused
(i) is less than five years older than the complainant; and
(ii) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant; or
(b) the accused is married to the complainant.

Exception for transitional purposes
(2.2) When the accused referred to in subsection (2.1) is five or more years older than the complainant, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if, on the day on which this subsection comes into force,

(a) the accused is the common-law partner of the complainant, or has been cohabiting with the complainant in a conjugal relationship for a period of less than one year and they have had or are expecting to have a child as a result of the relationship; and
(b) the accused is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.

Exemption for accused aged twelve or thirteen
(3) No person aged twelve or thirteen years shall be tried for an offence under section 151 or 152 or subsection 173(2) unless the person is in a position of trust or authority towards the complainant, is a person with whom the complainant is in a relationship of dependency or is in a relationship with the complainant that is exploitative of the complainant.
...
R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 2; 2008, c. 6, ss. 13, 54.


CCC

Consent Under the Age of 16
Consent cannot be used where the complainant is under the age of 16 except in very limited circumstances. (s.150.1) The accused can justify consent by establishing that they believed the complainant was at least 16 years old where all reasonable steps to ascertain age was taken.(s. 150.1(4)) However, the onus rests on the Crown to establish beyond a reasonable doubt that the steps were not taken. [1]

  1. R. v. P. (L.T.), 1997 CanLII 12464 (BC CA), (1997), 113 C.C.C. (3d) 42 (B.C.C.A.)

Mistaken Belief of Age[edit]

An accused can only be found guilty of a sex offence under s. 151, 152, 160, 172.1, 173, 271, 272 or 273 which involves a minor where the accused had an honest belief the complainant was of an age of consent. The crown as part of its case should prove beyond a reasonable doubt that the accused failed to take sufficient steps in all the circumstances to ascertain the complainant's age.

The standard to determine the sufficiency of the steps varies depending on the offence. Offences relying on s. 150.1 require the accused take "all reasonable steps", while offences under s. 172.1(4) require "reasonable steps".

s. 172.1...
Presumption re age
(3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.
No defence
(4) It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
2002, c. 13, s. 8; 2007, c. 20, s. 1; 2008, c. 6, s. 14.


CCC

150.1 ...
Mistake of age
(4) It is not a defence to a charge under section 151 or 152, subsection 160(3) or 173(2), or section 271, 272 or 273 that the accused believed that the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.
Idem
(5) It is not a defence to a charge under section 153, 159, 170, 171 or 172 or subsection 212(2) or (4) that the accused believed that the complainant was eighteen years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.
Mistake of age
(6) An accused cannot raise a mistaken belief in the age of the complainant in order to invoke a defence under subsection (2) or (2.1) unless the accused took all reasonable steps to ascertain the age of the complainant.
...
R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 2; 2008, c. 6, ss. 13, 54.


CCC

Reasonable Steps or All Reasonable Steps[edit]

"Reasonable steps" must be assessed in context and will turn on the specific circumstances of the case.[1] Both reasonable steps and "all reasonable steps" must be assessed on the basis of an objective and reasonable person.[2]

Under s. 150.1, "all reasonable steps" is a "due diligence defence".[3] The test is whether the steps ones that “a reasonable person would take in the circumstances” to ascertain a complainant’s age.[4]

Factors to consider include:[5]

  1. knowledge of the complainant
  2. physical appearance
  3. age and appearance of the complainant's associates
  4. age differential between the accused and the complainant
  5. demeanour of the complainant
  6. the time and location of the alleged sexual assault
  7. any other relevant times or places

It is generally understood that less familiar the parties are the more steps that are required to confirm there is consent to sexual activity.[6]

The bigger the age difference between the parties the greater the expectation that the accused would make more inquiries.[7] This can mean that a simple visual observation is insufficient.[8]

  1. R. v. Thain, 2009 ONCA 223 (CanLII), 2009 ONCA 223, [2009] O.J. No. 1022, at para. 43
  2. Thain at para. 46, 47
  3. R. v. Hess; R. v. Nguyen, 1990 CanLII 89 (SCC), [1990] 2 S.C.R. 906
  4. R. v. Dragos, 2012 ONCA 538 (CanLII)
    R. v. L.T.P. 1997 CanLII 12464 (BC CA), (1997), 113 C.C.C. (3d) 42, at para. 20. See also R. v. Hayes, [1991] A.J. No. 1232 (Alta. Q.B.)
  5. R. v. K.(R.A.) 1996 CanLII 7277 (NB CA), (1996), 106 C.C.C. (3d) 93 (N.B.C.A.)
    R. v. P.(L.T.) 1997 CanLII 12464 (BC CA), (1997), 113 C.C.C. (3d) 42 (B.C.C.A.)
  6. R. v. Dippel, 2011 ABCA 129
    R. v. Crangle, 2010 ONCA 451, 77 C.R. (6th) 98, 256 C.C.C. (3d) 234leave to appeal refused 416 N.R. 390 (note) (S.C.C.)
    R. v. S. (T.), 1999 CarswellOnt 245 (Ont. Gen. Div.) at para. 158 ("A sexual encounter between persons with no history of sexual experience together...as a matter of logic and common sense, requires clear and unambiguous communication of consent, not self‑serving interpretations of equivocal or contradictory behavior.")
  7. R. v. K. (R. A.) 1996 CanLII 7277 (NB CA), (1996), 106 C.C.C. (3d) 93 (N.B.C.A.)
  8. R. v. M.G.B, [2005] A.J. No. 1081

See Also[edit]

General Sex Offences[edit]

Sexual Assault[edit]

Sexual Assault
s. 271 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
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)*
Maximum 18 months jail or $5,000 fine
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)
Maximum 10 years jail
Designations
DNA primary designated offence

SOIRA designated offence

DO/LTO primary designated offence
References
Offence Elements
Sentence Principles
Sentence Digests


Legislation[edit]

Sexual assault
271. Everyone who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding 10 years and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding 18 months and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of 90 days.


R.S., 1985, c. C-46, s. 271; R.S., 1985, c. 19 (3rd Supp.), s. 10; 1994, c. 44, s. 19; 2012, c. 1, s. 25.


CCC

Proof of Offence[edit]

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the accused assaulted the victim (e.g. non-consentual touching)
  5. the sexual nature of the contact;
  6. the absence of consent;
  7. the age of the complainant;
  8. the age of the accused;
  9. the relationship between the complainant and accused;
  10. medical evidence (if any)

Interpretation[edit]

See also Canadian Criminal Law/Offences/Sexual Offences

A sexual assault is an assault (as defined in s. 265) in which the complainant's sexual integrity in violated.[1]

It is an assault whose essence requires touching at the least.[2]

The accused does not need to have a sexual purpose in the assault. Disciplining or humiliating a person in a sexual manner is a sexual assault.[3]

  1. R. v. Chase [1987] 2 SCR 293, 1987 CanLII 23
  2. R. v. Ewanchuk, 1999 CanLII 711, [1999] 1 S.C.R. 330, 169 D.L.R. (4th) 193
  3. R. v. V. (K.B.), [1993] 2 SCR 857 1993 CanLII 109
    R. v. Nicolaou, 2008 BCCA 300

Intent[edit]

The mens rea of sexual assault is "intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched." [1]

Consent[edit]

See Canadian Criminal Law/Consent (sexual offences)

Defences[edit]

Typical Motions or Orders[edit]

Witness motions[edit]

History[edit]

On August 9, 2012, s. 271 was amended to add a mandatory minimum of 90 days on summary conviction and 1 year on indictable election where the complainant is under the age of 16.

Sexual Assault with a Weapon[edit]

Sexual Assault with a Weapon
s. 272 of the Crim. Code
Election / Plea
Crown Election Indictable
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
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 Restricted firearm:
5 years (first)
7 years (second or more)
Other firearms:
4 years
Maximum 14 years jail
Designations
DNA Primary designated offence

SOIRA designated offence

DO/LTO primary designated offence
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Sexual assault with a weapon, threats to a third party or causing bodily harm
272. (1) Every person commits an offence who, in committing a sexual assault,

(a) carries, uses or threatens to use a weapon or an imitation of a weapon;
(b) threatens to cause bodily harm to a person other than the complainant;
(c) causes bodily harm to the complainant; or
(d) is a party to the offence with any other person.

...
R.S., 1985, c. C-46, s. 272; 1995, c. 39, s. 145; 2008, c. 6, s. 28; 2009, c. 22, s. 10; 2012, c. 1, s. 26.


CCC

Proof of the Offence[edit]

In addition to the essential elements of identity, time and jurisdiction, the prosecution should also prove:

  1. the accused sexually assaulted the victim
  2. the assault was committed by the use of a weapon or threaten to use a weapon

Interpretation[edit]

See also Canadian Criminal Law/Offences/Sexual Offences

It is not an essential element of the offence that the assailant cause bodily harm to the complainant. [2]


  1. R v Ewanchuk, 1999 CanLII 711 at para. 42
  2. R. v. Papalia, 2012 BCSC 245 at 84

Defences[edit]

Typical Motions or Orders[edit]

Witness motions[edit]

See Also[edit]

Sexual Assault Causing Bodily Harm[edit]

Sexual Assault Causing Bodily Harm
s. 272 of the Crim. Code
Election / Plea
Crown Election Indictable
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
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 Restricted firearm:
5 years (first)
7 years (second or more)
Other firearms:
4 years
Maximum 14 years jail
Designations
DNA Primary designated offence

SOIRA designated offence

DO/LTO primary designated offence
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Sexual assault with a weapon, threats to a third party or causing bodily harm
272. (1) Every person commits an offence who, in committing a sexual assault,

(a) carries, uses or threatens to use a weapon or an imitation of a weapon;
(b) threatens to cause bodily harm to a person other than the complainant;
(c) causes bodily harm to the complainant; or
(d) is a party to the offence with any other person.

...

R.S., 1985, c. C-46, s. 272; 1995, c. 39, s. 145; 2008, c. 6, s. 28; 2009, c. 22, s. 10; 2012, c. 1, s. 26.

CCC

Proof of the Offence[edit]

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the accused assaulted the victim
  5. in doing so the accused caused bodily harm, if under s.272(1)(c) (See Canadian Criminal Law/Causation)
  6. there was an objective foresight of the risk of bodily harm (mens rea)

Interpretation[edit]

Defences[edit]

A defence of consent it not available to sexual assault causing bodily harm.[1] For details, see Canadian Criminal Law/Consent (sexual offences).

  1. R. v. Welch, 1995 CanLII 282 (ON CA)

Typical Motions or Orders[edit]

Witness motions[edit]


Aggravated Sexual Assault[edit]

Aggravated Sexual Assault
s. 273 of the Crim. Code
Election / Plea
Crown Election Indictable
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
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)
Maximum 5 years jail (first)
7 years jail (second)
References
Offence Elements
Sentence Principles
Sentence Digests
Comments
DNA Primary designated offence

SOIRA designated offence

DO/LTO primary designated offence

Legislation[edit]

Aggravated sexual assault
273. (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.

...

R.S., 1985, c. C-46, s. 273; 1995, c. 39, s. 146; 2008, c. 6, s. 29; 2009, c. 22, s. 11; 2012, c. 1, s. 27.

CCC

Proof of Offence[edit]

  1. Elements of Sexual Assault:
    1. the accused assaulted the victim (e.g. non-consentual touching)
    2. the sexual nature of the contact;
    3. the absence of consent;
    4. the age of the complainant;
    5. the age of the accused;
    6. the relationship between the complainant and accused;
    7. medical evidence (if any)
  2. Elements of Aggravated Assault:
    1. the injuries amounted to the victim being (See Injuries):
      1. wounded,
      2. maimed,
      3. disfigured, or
      4. had life endangered

Interpretation[edit]

This offence is a straight indictable offence. Under s.536(2), the accused can elect the mode of trial.

HIV Infection[edit]

The Crown must prove as an essential element to proving the offence in a case of HIV infection that the victim's consent to intercourse was vitiated by the accused's fraudulent concealment of his infection. Specifically, the crown should prove:[1]

  1. dishonest act to hide HIV status or failure to disclose HIV status;
  2. the victim's lack of awareness of the infection
    1. knowledge that would have allowed her to refuse sex and
    2. intercourse would be a significant risk of bodily harm
  1. R. v. Mabior, 2012 SCC 47

Defences[edit]

Typical Motions or Orders[edit]

Witness motions[edit]

See Also[edit]

Keeping Common Bawdy-house[edit]

Keeping common bawdy-house
210. (1) Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
Landlord, inmate, etc.
(2) Every one who

(a) is an inmate of a common bawdy-house,
(b) is found, without lawful excuse, in a common bawdy-house, or
(c) as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house,

is guilty of an offence punishable on summary conviction.
Notice of conviction to be served on owner
(3) Where a person is convicted of an offence under subsection (1), the court shall cause a notice of the conviction to be served on the owner, landlord or lessor of the place in respect of which the person is convicted or his agent, and the notice shall contain a statement to the effect that it is being served pursuant to this section.
Duty of landlord on notice
(4) Where a person on whom a notice is served under subsection (3) fails forthwith to exercise any right he may have to determine the tenancy or right of occupation of the person so convicted, and thereafter any person is convicted of an offence under subsection (1) in respect of the same premises, the person on whom the notice was served shall be deemed to have committed an offence under subsection (1) unless he proves that he has taken all reasonable steps to prevent the recurrence of the offence.
R.S., c. C-34, s. 193.

Transporting person to bawdy-house
211. Every one who knowingly takes, transports, directs, or offers to take, transport or direct, any other person to a common bawdy-house is guilty of an offence punishable on summary conviction.
R.S., c. C-34, s. 194.

CCC

Proof of the Offence[edit]

The Crown must prove that:[1]

  1. the accused's conduct, by its nature, caused harm or presented a significant risk of harm to individuals or society
  2. the risk was in a way that undermined or threatened to undermine a value reflected in and formally endorsed by the Constitution or other fundamental laws by
    1. confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or
    2. predisposing others to anti-social behaviour; or
    3. physically or psychologically harming persons involved in the conduct, and
  3. the harm or risk of harm is of a degree that is incompatible with the proper functioning of society.


  1. R. v. Labaye 2005 SCC 80 (CanLII), [2005] 3 SCR 728 at para. 62

Interpretation[edit]

The categories of harm is not a closed list.[1]

  1. Labaye

Procuring and Living on the Avails of Prostitution[edit]

Procuring and Living on Avails
s. 212 of the Crim. Code
Election / Plea
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
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)
References
Offence Elements
Sentence Principles
Sentence Digests

Overview[edit]

Section 212 creates 13 separate indictable offences related to facilitating prostitution and similar offences.

Legislation[edit]

Procuring
212. (1) Every one who

(a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada,
(b) inveigles or entices a person who is not a prostitute to a common bawdy-house for the purpose of illicit sexual intercourse or prostitution,
(c) knowingly conceals a person in a common bawdy-house,
(d) procures or attempts to procure a person to become, whether in or out of Canada, a prostitute,
(e) procures or attempts to procure a person to leave the usual place of abode of that person in Canada, if that place is not a common bawdy-house, with intent that the person may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada,
(f) on the arrival of a person in Canada, directs or causes that person to be directed or takes or causes that person to be taken, to a common bawdy-house,
(g) procures a person to enter or leave Canada, for the purpose of prostitution,
(h) for the purposes of gain, exercises control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally,
(i) applies or administers to a person or causes that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual intercourse with that person, or
(j) lives wholly or in part on the avails of prostitution of another person,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
Living on the avails of prostitution of person under eighteen
(2) Despite paragraph (1)(j), every person who lives wholly or in part on the avails of prostitution of another person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of two years.
Aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years
(2.1) Notwithstanding paragraph (1)(j) and subsection (2), every person who lives wholly or in part on the avails of prostitution of another person under the age of eighteen years, and who

(a) for the purposes of profit, aids, abets, counsels or compels the person under that age to engage in or carry on prostitution with any person or generally, and
(b) uses, threatens to use or attempts to use violence, intimidation or coercion in relation to the person under that age,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years but not less than five years.
Presumption
(3) Evidence that a person lives with or is habitually in the company of a prostitute or lives in a common bawdy-house is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution, for the purposes of paragraph (1)(j) and subsections (2) and (2.1).
Offence — prostitution of person under eighteen
(4) Every person who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of six months.
(5) [Repealed, 1999, c. 5, s. 8]
R.S., 1985, c. C-46, s. 212; R.S., 1985, c. 19 (3rd Supp.), s. 9; 1997, c. 16, s. 2; 1999, c. 5, s. 8; 2005, c. 32, s. 10.1.


CCC

Proof of the Offence[edit]

Procuring Sex for Another (212(1)(a))

Inveigle or Entice (212(1)(b))

Conceal in Bawdy-house (212(1)(c))

Procuring a Prostitute (212(1)(d))

Procuring another to a bawdy-house (212(1)(e))

Procuring person arriving in Canada (212(1)(f))

Procuring another to enter or leave Canada (212(1)(g))

Control or Influence in Prostitution (212(1)(h))

Overpowering or Stupefying Another to Enable Sex (212(1)(i))

Living on Avails of Prostitution (212(1)(j))

Living on Avails of Under-age Prostitute (212(2))

Living on Avails of Under-age Prostitute with Violence (212(2.1))

Obtains Sex of Under-age Prostitute 212(4)

Interpretation[edit]

"Living-on-the-avails" does not require the Crown to prove there was coercion.[1]

Under s. 197, a "prostitute" "means a person of either sex who engages in prostitution"

Under s. 197, a "place" "includes any place, whether or not (a) it is covered or enclosed, (b) it is used permanently or temporarily, or (c) any person has an exclusive right of user with respect to it;"

  1. R. v. Barrow, 2001 CanLII 8550 (ON CA) at 31

Living on Avails[edit]

Section 212(1)(j) was found to be arbitrary, overbroad, and disproportionate to the provisions objectives and so violates s. 7 of the Charter.[1]

Section 212(3) creates a presumption for those who are found to live in a common bawdy-house or lives with or is habitually in the company of a prostitute is living on the avails of prostitution. This section violates the presumption of innocence but is within a reasonable limit and is constitutionally valid.[2]

  1. Canada (Attorney General) v. Bedford, 2012 ONCA 186 appeal to SCC pending
  2. R v Downey, [1992] 2 SCR 10

Under-age Prostitutes[edit]

Soliciting under s.213 is not a lesser included offence to the offence under s. 212(4).[1]

It is not necessary that the prostitute solicited by the accused be a real person.[2]


  1. R v Amabile (2000), 143 CCC (3d) 270 (BCCA)
  2. R. v. Kerster, 2001 BCSC 230 at para 41 (NB: concerned an earlier version of s. 212(4))

Procuring and Living on the Avails of Prostitution[edit]

Solicitation
s. 213 of the Crim. Code
Election / Plea
Crown Election Summary
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)
Maximum 6 months jail or $5,000 fine
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Offence in relation to prostitution
213. (1) Every person who in a public place or in any place open to public view

(a) stops or attempts to stop any motor vehicle,
(b) impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place, or
(c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person

for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.

Definition of “public place”
(2) In this section, “public place” includes any place to which the public have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.

CCC

Proof of Offence[edit]

213 (1)(c)[1]

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. stop, attempt to stop, communicate, or attempt to communicate with any person;[2]
  5. do so in a public place or in any place open to public view;
  6. do so for purpose or engaging in prostitution or obtaining sexual services.[3]


  1. R. v. McLaughlin, 1992 Carswell Alta 628 at 14
  2. R. v. Head 1987 CanLII 2823 (BC C.A.), (1987), 36 C.C.C. (3d) 562 (B.C.C.A.) [2]
  3. R. v. Pake, (1995), 103 C.C.C. (3d) 524 at p. 529 (Alta. C.A.)

Interpretation[edit]

Prostitution
Definitions
197. (1) In this Part,

...

“prostitute” means a person of either sex who engages in prostitution;

...

CCC

Communication
There is no requirement that specific sexual services or money to be paid be mentioned. Context is inferred from the context of the communication: [1]

There is no requirement in law for an actual agreement to be reached between the prostitute and the customer. Shopping for sex may constitute an offence. [2]

It is not enough to prove that there was a conversation which dealt with sexual services of a prostitute. It cannot be simply for a collateral purpose. [3] The prohibited purpose must be proven beyond a reasonable doubt.[4]

It must be established that the accused had an intention to engage in prostitution or to obtain the sexual services of a prostitute; this intention may be inferred from the circumstances. The court looks at the intent at the time of the conversation.[5]

Communication for a collateral or indirect purpose (such as a prostitute stopping a taxi to ask for transportation to a well-known downtown location or a prostitute asking a pharmacist for a package of condoms) does not constitute the prohibited purpose.[6]

The offence is complete at the time of the communication occurs assuming there is the requisite intent.[7]

  1. R. v. Lawrence 2002 ABPC 189 at para. 19 [3]
  2. R. v. Searle (1994), 163 N.B.R. (2d) 123 at para. 21 (N.B. Prov. Ct.);
    R. v. Lawrence, supra at para. 19.
  3. R. v. Khalil, 2012 ABPC 93 at 75
  4. R v. McLaughlin, 1992 Carswell Alta 628 at 16
  5. R. v. Pake, (1995), 103 C.C.C. (3d) 524 at p. 529 (Alta. C.A.) ibid at pp. 530-31.
  6. R. v Wasylyshyn, [1988] B.C.J. No. 3210 at para. 8 (Co. Ct.) (QL); R. v. Lawrence, supra at para. 20.
  7. R. v. Pake, (1995) 103 CCC (3d) 524 (ABCA), Foisy, J.A., at pp. 530-531

See Also[edit]

Sexual Offences Against Children[edit]

Sexual Interference[edit]

Sexual Interference
s. 151 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Summary Dispositions
Avail. Disp. Discharge (730)

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

Conditional Sentence (742.1)
Minimum 90 days jail
Maximum 18 months jail or $5,000 fine
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 jail
Maximum 10 years jail
References
Offence Elements
Sentence Principles
Sentence Digests
Comments
DNA primary designated offence

SOIRA designated offence
DO/LTO

primary designated offence

Legislation[edit]

Sexual interference
151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.

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


CCC

Proof of Offence[edit]

The Crown should prove: [1]

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. that victim was under the age of sixteen at the time of the events alleged
  5. that the accused touched the victim,
  6. that that touching was for a sexual purpose
  7. the accused knew the victim was under 16 or the accused did not take reasonable steps to ascertain the age of the victim

Essential elements are in bold.

  1. R. v. Quinones, 2012 BCCA 94

Interpretation[edit]

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

  1. R. v. Sears, (1990), 58 C.C.C. (3d) 62

Defences[edit]

Pre-Trial and Trial Motions[edit]

Witness motions[edit]

History[edit]

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


Invitation to Sexual Touching[edit]

Invitation to Sexual Touching
s. 152 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Summary Dispositions
Minimum 90 days jail
Maximum 18 months jail or $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Minimum 1 year jail
Maximum 10 years jail
References
Offence Elements
Sentence Principles
Sentence Digests
Comments
DNA Primary designated offence

SOIRA designated offence
DO/LTO

primary designated offence

Legislation[edit]

Invitation to sexual touching
152. Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16 years,

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.


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


CCC

Proof of Offence[edit]

The Crown should prove:

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the accused communicated with a person
  5. that person was under 14 years of age at the time of communciation
  6. knew that the child was under the age of 14
  7. the communication was in a manner constituting an invitation, incitement or counselling[1] to touch any part of the accused's body, the complainant's body, or object
  8. the communication was for a sexual purpose
  9. the accused knew that the communication would be received as an an invitation, incitement or counselling to do the physical conduct of the offence, or knew that there was a "substantial and unjustified risk" that the child would receive that communication as being an invitation, incitement or counselling to do that physical conduct. [2]


  1. R. v. Legare, 2008 ABCA 138, [2008] A.J. No. 373 at 33 and 37
  2. R v Legare 2008 ABCA 138 at 41

Interpretation[edit]

Actus Reus[edit]

A request by the accused to touch the victims private parts is an invitation to touch for a sexual purpose.[1]

Actual physical touching or an invitation for physical touching is not necessary. Even an invitation to hold a tissue used by the accused can be sufficient.[2]

  1. R. v. Gray, [2004] O.J. No. 4100 (C.A.)
    R. v. Phippard, [2005] N.J. No. (P.C.), at para 10
  2. R. v. Fong 1994 ABCA 267, (1994), 92 C.C.C. (3d) 171

Mens Rea[edit]

Sexual touching is a specific intent offence.[1]

The "sexual purpose" of an invitation is determined based on an objective standard in light of all the circumstances. In looking at whether the words used had a sexual purpose, the court "can look to the part of the body that was to be touched, the nature of the contact requested, the situation in which the invitation occurred, including the words used, together with any accompanying gestures and all other circumstances surrounding the conduct."[2]

  1. see R. v. J.A.B. [2002] O.T.C. 723
  2. R. v. Pellerin, [2011] O.J. No. 1623 (C.J.)
    R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293

Typical Motions or Orders[edit]

Witness motions[edit]

Case Digests[edit]

  • R v CMM, 2012 MBQB 141 - offender convicted for asking child to touch her toes while he took pictures of her private area

History[edit]

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


Sexual Exploitation[edit]

Sexual Exploitation
s. 153 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Summary Dispositions
Avail. Disp. Discharge (730)

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

Conditional Sentence (742.1)
Minimum 90 days jail
Maximum 18 months jail
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 jail
Maximum 10 years jail
Designations
DNA Primary designated offence

SOIRA designated offence
DO/LTO

primary designated offence
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

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.

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


CCC

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.

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

Proving the Offence[edit]

Sexual Exploitation
In addition to the essential elements of time, location, and identity, the prosecution should prove:

  1. the complainant was a young person (between 16 and 17 years old)
  2. the accused was in a position of trust or authority with respect to the complainant, the complainant was dependant upon the accused, or the complainant was in an exploitive relationship
  3. the accused touched a party of the complainant's body
  4. the touching was direct (with the body of the accused) or indirectly ( with an object)
  5. the touching was for a sexual purpose

Interpretation[edit]

"Young Person"[edit]

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."

Position of Trust or Authority[edit]

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. [1]

A teacher will be in a position of trust absent exceptional circumstances.[2]

  1. R. v. Caskenette (1993), 80 C.C.C. (3d) 439 - Accused testified that he was not regularly on the work site
  2. R v McLachlan, 2012 SKCA 74 (CanLII)

Sexual Exploitation[edit]

The meaning of "exploitive relationship" is largely determined by the scope of the other types of relationships set for in ss. (1.2). (R. v. Anderson, 2009 PECA 4 at 67)

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."[1]

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.

CCC


  1. R. v. Anderson, 2009 PECA 4 at 68

Included Offences[edit]

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 C.C.C. (3d) 150, Philp J. (Ont. H.C.)

History[edit]

In 2005, "An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32" amended 153(1) and added 153(1.1) and (1.2). It came into force November 1, 2005.

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


Agree or Arrange a Sexual Offence Against Child[edit]

Legislation[edit]

Agreement or arrangement — sexual offence against child
172.2 (1) Every person commits an offence who, by a means of telecommunication, agrees with a person, or makes an arrangement with a person, to commit an offence

(a) under subsection 153(1), section 155, 163.1, 170 or 171 or subsection 212(1), (2), (2.1) or (4) with respect to another person who is, or who the accused believes is, under the age of 18 years;
(b) under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to another person who is, or who the accused believes is, under the age of 16 years; or
(c) under section 281 with respect to another person who is, or who the accused believes is, under the age of 14 years.

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

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.

(3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of 18, 16 or 14 years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.
(4) It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
(5) It is not a defence to a charge under paragraph (1)(a), (b) or (c)

(a) that the person with whom the accused agreed or made an arrangement was a peace officer or a person acting under the direction

of a peace officer; or

(b) that, if the person with whom the accused agreed or made an arrangement was a peace officer or a person acting under the direction of a peace officer, the person referred to in paragraph (1)(a), (b) or (c) did not exist.



CCC

Interpretation[edit]


Computer Sex Offences[edit]

Child Pornography[edit]

Child Pornography
s. 163.1 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Summary Dispositions
Avail. Disp. Discharge (730)

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

Conditional Sentence (742.1)
Minimum 90 days jail (poss'n/access)
6 months jail (make/distrib.)
Maximum 18 months jail
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 6 months days jail (poss'n/access)
1 year jail (make/distrib.)
Maximum 5 years jail (poss'n/access)
10 years jail (make/distrib.)
References
Offence Elements
Sentence Principles
Sentence Digests
Comments
DNA Primary designated offence
SOIRA designated offence


Legislation[edit]

s. 163.1
...
Making child pornography
(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding two years less a day and to a minimum punishment of imprisonment for a term of six months.

Distribution, etc. of child pornography
(3) Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding two years less a day and to a minimum punishment of imprisonment for a term of six months.


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

(a) an indictable offence and is liable to imprisonment for a term of not more than five years and to a minimum punishment of imprisonment for a term of six months; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.


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

(a) an indictable offence and is liable to imprisonment for a term of not more than five years and to a minimum punishment of imprisonment for a term of six months; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.

Interpretation
(4.2) For the purposes of subsection (4.1), a person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.
...
Question of law
(7) For greater certainty, for the purposes of this section, it is a question of law whether any written material, visual representation or audio recording advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

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


CCC

Proof of Offence[edit]

Making[edit]

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the accused did the act of making, printing, publishing or possessing for the purpose of publishing materials
  5. the accused specifically intended to perform the impugned act
  6. the materials were child pornography
  7. the accused knew or was wilfully blind to the materials being child pornographic

Making available or Distribution[edit]

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. that the material in question constituted child pornography;
  5. that the child pornography was actually made available by the accused (make available) or actually distributed by the accused (distribute); and
  6. that the accused had the intent to make child pornography available to others.[1]


Possession[edit]

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the accused possessed images, videos or texts
  5. the images, videos or texts were child pornographic

Accessing[edit]

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

The essential elements are in bold.

  1. R. v. Johannson, 2008 SKQB 451 at para. 34
    R. v. Spencer, 2011 SKCA 144 at 87 (mens rea)

Interpretation[edit]

An accused can be found guilty of having accessed and possessed child pornography only where “he knew that at least one of the files that he downloaded showed a person under the age of 18 engaged in explicit sexual activity.”[1]


  1. R. v. Pressacco, 2010 SKQB 114

Child Pornography Defined[edit]

See Canadian Criminal Law/Offences/Child Pornography/Definition of Child Pornography

Making Available[edit]

Actus Reus
The act of sharing a file through file-sharing software will make out the actus reus of making available.[1] Making available is made out by a person who downloads the file "which is thereafter publicly accessible through file sharing". The only overt act required is that of downloading the file using file sharing software that can make it accessible. There is effectively no difference between this and making the file accessible on a website.[2]

Mens Rea
The mens rea requires one of the following:[3]

  1. proof of actual intent on the part of the accused to make computer files containing child pornography available to others using a file sharing program;
  2. actual knowledge on the part of the accused that file sharing programs make files available to others; or
  3. proof of wilful blindness. Wilful blindness can be satisfied with proof the accused’s file sharing program had actually made child pornographic files available to others coupled with a suspicion on his part that it had done so but where no steps were taken to determine if his suspicion was true.

Awareness of the ability of a peer-to-peer client to share files downloaded onto a computer can constitute “making available”.[4] However, this conclusion can be rebutted where steps were taken to delete or remove the contents of the shared file folder.[5]

The mens rea can be proven an actual intention to make the materials available.[6] Familiarity with how peer-to-peer software works on its own is not sufficient to establish actual intent.[7]

The mens rea is made out if the crown proves wilful blindness "by proving the accused’s file sharing program had actually made child pornography files available to others and the accused had actual suspicion that it had done so, but had made a conscious decision not to determine whether his suspicion was in fact an actuality."[8]

Recklessness has been used as a basis to prove mens rea.[9]

The mens rea does not require actual knowledge. It merely requires "the accused's awareness that the downloaded child pornography could be made available to others by his use of a file sharing program." [10]

The court can consider the evidence visible to the user indicating file sharing, such as:[11]

  • notifications when the program is installed and each time it is started up;
  • visual indicators that show whether or not others are downloading files from the user’s computer at any given moment;
  • any statements on the users screen identifying the software as a file-sharing program

It can be inferred that any message or notification from the software when the user starts the program was read by the user.[12]

The court can also consider the accused's experience and familiarity with computers generally. R v Jeffrey, 2012 SKPC 12 (CanLII) at para. 76 to </ref>

Evidence that some files were moved from the shared folder to another folder will suggest an intent to share the remaining files in the folder.[13]

Deleted files[edit]

Evidence of the quick removal of the child pornographic materials from the "shared folder" suggests an intention to prevent sharing.[14]

  1. R v Benson 2010 SKQB 459 at para. 30
  2. R. v. Spencer, 2011 SKCA 144 at para. 80
  3. R v Lorenz, 2012 SKQB 293 (CanLII)
  4. R. v. Johannson, 2008 SKQB 451
    c.f. Pressacco at para. 30 (judge refused to infer intention "from his knowledge of the operation of file-sharing")
  5. Pressacco at para 33
  6. R v Lamb 2010 BCSC 1911 at para. 74,75 - suggests that actual knowledge is necessary
  7. R. v. Pelich, 2012 ONSC 3611 at para 102
  8. R. v. Spencer, 2011 SKCA 144 at para 87 ("the Crown could also satisfy the knowledge requirement of the mens rea element of the s. 163.1(3) “makes available” offence on the basis of wilful blindness by proving the accused’s file sharing program had actually made child pornography files available to others and the accused had actual suspicion that it had done so, but had made a conscious decision not to determine whether his suspicion was in fact an actuality.")
  9. R. v. Rivet, 2011 ONCA 122 -- offender was sophisticated computer user and understood the file sharing system. he failed to change the settings until after the police were able to download CP from his machine
  10. R. v. Spencer, 2011 SKCA 144 at para. 87
  11. e.g. R v Jeffrey, 2012 SKPC 12 (CanLII) at para. 74
  12. R v Johnannson, 2008 SKQB 451 at para. 45-46
  13. See R v Lamb at para. 74
    R. v. Smith, 2011 BCSC 1826 (CanLII) at para. 182
  14. R. v. Pelich, 2012 ONSC 3611 at para 104

Making[edit]

The "making" of child pornography requires the "creation of novel child pornography, that is, an instance of child pornography that is different from existing instances."[1]

By contrast, some older decisions have stated that downloading and then transmitting child pornography to disks amounts to making.[2]No cases post-2008 have agreed with this proposition however.

The "maker" is the person who “directs or controls production of novel child pornography”[3]

  1. R v Keough, 2011 ABQB 48 at 232
    R. v. Pelich, 2012 ONSC 3611 at para. 132
    R. v. Davies, 2012 ONSC 3631 (CanLII) - rejects copying files as "making"
  2. See R. v. Mohanto, [2002] O.J. No. 5840 (C.J.)
    R. v. B.W., [2002] O.J. No. 5727 (C.J.)
    R. v. Horvat, [2006] O.J. No. 1673 (S.C.), 2006 CanLII 13426, aff’d on other grounds, 2008 ONCA 75
    R. v. Dittrich, [2008] O.J. No. 1617 (S.C.), 2008 CanLII 19217 (ON SC)
  3. R v Barabash 2012 ABQB 99 at 114
    R v Hewlett, 2002 ABCA 179

Possession[edit]

There are three ways in which a file can get on a computer:[1]

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


Actus Reus
Possession of child pornography requires "possession of the underlying data files in some way". "Simply viewing images online" is not sufficient.[2]

The act of possessing a file begins at the moment the downloading begins.[3]

Mens rea
As with all possession, the crown must prove knowledge and control.

Possession concerns the control of the underlying file and not the image or video depicted.[4] For that reason, it is not necessary that the accused actually have viewed the images/videos to be in possession of them.[5] It is only necessary that the accused be aware of the underlying illegal nature of the file stored on the computer.[6]

The accused begins their possession at the time that they initiate the download, not at the point where the download is complete.[7]

The automatic storing of files as part of the computer's "cache" alone does not amount to possession.[8]

Knowledge

See generally, Canadian Criminal Law/Possession

Where the accused has viewed the materials, he becomes imbued with the knowledge of the files' contents.[9]

Knowledge can be inferred on the basis of circumstantial evidence.[10] Evidence can include links on the desktop of the computer.[11]

Courts should look at indictators such as "ownership, access, and usage of the computers on which the electronic file is stored".[12] Also considering the ways files can get on a computer without the user's knowledge, for example from previous owner, another user, accidental download based on misleading file names, downloaded while web-browsing, pop-up sites, and spyware.[13]

Inadvertent or Accidental Downloading
It is not necessary for the crown to establish intentional downloading to establish possession.

However, where there is evidence of intentional downloading, the Crown can rely on the presumption that "one intends the consequences of one's actions".[14]

In order to rely upon inadvertence the defence must adduce some evidence supporting this, rather than simply speculating.[15]

Control
Control over a computer file refers to the "power or authority over the item, whether exercised or not."[16]

Control can be inferred by the same evidence from which knowledge can be inferred.[17]

Deleted files
The fact that a file is deleted does not alter or nullify possession of the file.[18]However, the ability to make the inference of knowledge of deleted files is less than files readily visible to the user.[19]

Where a file has been deleted but not overwritten, the Crown should establish that the accused knew that the files were still accessible and knew how to access them.[20]

  1. R. v. Panko, 2006 ONCJ 200 (CanLII)
  2. R v Morelli, 2010 SCC 8 at para. 14
  3. Morelli at para. 23
  4. R. v. Morelli, 2010 SCC 8 at 19
  5. R. v. Daniels, 2004 NLCA 73 at 12 to 14
  6. R v Beaver 1957 CanLII 14 (SCC), [1957] S.C.R. 531
  7. R. v. Daniels, 2004 NLCA 73 at 10-14
  8. R. v. Morelli, 2010 SCC 8, [2010] 1 SCR 253 at 36
  9. see R. v. Garbett, [2008] O.J. No. 917 at para. 47 (Ont. Ct. J.))
    Also R. v. Braudy, 2009 CanLII 2491 (ON SC) at para. 51
  10. e.g. R. v. Grey 1996 CanLII 35 (ON CA), (1996), 28 O.R. (3d) 417 (C.A.)
  11. eg. R. v. Panko, [2007] O.J. No. 3826 (S.C.J.) at para. 61
  12. R. v. Braudy, 2009 CanLII 2491 (ON SC) at para. 52
    citing R. v. Tresierra, [2006] B.C.J. No. 1593 at paras. 7 and 8 (B.C.S.C.)
  13. Braudy at para. 53
  14. R v Missions 2005 NSCA 82 at para. 21
    R v Braudy at para. 55
  15. R. v Jenner 2005 MBCA 44 (CanLII), (2005), 195 C.C.C. (3d) 364 at para. 21 (Man. C.A.)
  16. R. v. Chalk, 2007 ONCA 815 (CanLII) at para. 19
    see also R. v. Daniels 2004 NLCA 73 (CanLII), (2004), 191 C.C.C. (3d) 393 (N.L.C.A.), at para. 12, the ability to determine "what will be done with the material."
  17. Braudy at para. 89
    see Tripp, 2007 NBPC 32 at para. 15.
  18. R v Benson, 2012 SKCA 4 at 14 to 17
  19. R v Tripp, 2007 NBPC 32 (CanLII), [2007] N.B.J. No. 336 at para. 23
    R v Tresierra, 2006 BCSC 1013 (CanLII), [2006] B.C.J. No. 1593 at paras. 51-56
    R. v. Braudy, 2009 CanLII 2491 (ON SC)
  20. R. v. Davies, 2012 ONSC 3631 (CanLII)

Accessing[edit]

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

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

  1. R v Morelli at para 25, 26
    citing R. v. Panko 2007 CanLII 41894 (ON SC), (2007), 52 C.R. (6th) 378
    R. v. Weir, 2001 ABCA 181
    R. v. Daniels, 2004 NLCA 73
  2. R. v. R.D., 2010 BCCA 313, 289 B.C.A.C. 133

Procedure[edit]

During a trial, where the accused has formally admitted to the nature of the images or videos being child pornography, the Crown is not entitled to still lead evidence of the images, requiring the judge to view them all. Instead, it is entirely in the discretion of the court to review the exhibits during trial.[1]

  1. R. v. Haimour, 2010 ABQB 7 considered but not ruled on in R. v. Haimour, 2011 ABCA 143 at para. 13

Defences[edit]

There are three categories of statutory defences. All the defences should be “liberally construed”.

s. 163.1
...
Defence
(5) It is not a defence to a charge under subsection (2) in respect of a visual representation that the accused believed that a person shown in the representation that is alleged to constitute child pornography was or was depicted as being eighteen years of age or more unless the accused took all reasonable steps to ascertain the age of that person and took all reasonable steps to ensure that, where the person was eighteen years of age or more, the representation did not depict that person as being under the age of eighteen years.
...
1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7.


CCC

Public Good Defence[edit]

There is an exception where the otherwise criminal conduct is for an enumerated public good and does not pose an undue risk of harm to persons under the age of 18. Section 163.1(6):

Defence
(6) No person shall be convicted of an offence under this section if the act that is alleged to constitute the offence

(a) has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and
(b) does not pose an undue risk of harm to persons under the age of eighteen years.

...
1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7.


CCC

This statutory defence was created in 2004. Prior to that there was a common law defence for possession for the "public good". The public good was defined as "necessary or advantageous to religion or morality, to the administration of justice, the pursuit of science, literature, or art, or other objects of general interest"[1]. This was found to include possession "by people in the justice system for purposes associated with prosecution, by researchers studying the effects of exposure to child pornography, and by those in possession of works addressing the political or philosophical aspects of child pornography"[2]

The defence set out in s.163.1(6) involves two phases.

First, the court must consider whether there is any doubt that the accused subjectively had good faith reason for possessing child pornography for the reasons listed (administration of justice or to science, medicine, education or art).[3] It must also determine whether, "based on all of the circumstances, a reasonable person would conclude that (1) there is an objective connection between the accused’s actions and his or her purpose, and (2) there is an objective relationship between his or her purpose and one of the protected activities (administration of justice, science, medicine, education or art)."[4]

"Education" can include "the education that parents may want to impart to their children in specific circumstances”, which can encompass a father holding onto a discovered child pornographic video created by the daughter in anticipation that the daughter would voluntarily admit her doings to her mother.[5]

  1. R v Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45 at para 70
  2. Sharpe at para 70
  3. R v Katigbak, 2011 SCC 48 at 57, 58
  4. Katigbak at para 60
  5. see R.L. v. R., [2009] R.J.Q. 669 (Que.C.A.), esp. para. 53

Private Use Defence[edit]

Sharpe at para 75, created a constitutional exemption for the class of materials that are for private use. Private use materials are where the materials depict lawful sexual activity made by or depicting the person in possession and is intended for private use only.[1]

The exemption is based on the Charter rights under s. 2(b) and 7 as such materials "may be of significance to adolescent self‑fulfilment, self‑actualization and sexual exploration and identity."[2]

The interpretation of “private use” is not a strict “bright line” and can include passing on materials for safe-keeping.[3]

The only persons who can possess CP under the private use exception is the “creator and the persons depicted therein.”[4]

This defence applies to distribution as well as possession.[5]

However, Sharpe summarizes the exception as protecting “person’s possession of visual recordings created by or depicting that person, but only where these recordings do not depict unlawful sexual activity, are held only for private use, and were created with the consent of those persons depicted.”[6]

The test requires:[7]

  1. materials depict lawful sexual activity
  2. the materials were made with the consent of the persons depicted,
  3. was held for private use.

To put it another way, third-party possession of private use materials is illegal when it is: [8]

  1. without the consent of all persons recorded,
  2. obtained by fraud or deception,
  3. a result of coercion, threat, or extortion,
  4. results in the loss of control of the private use material,
  5. in exchange for any form of consideration, or
  6. otherwise exploitive or abusive.

The defence does not cover the distribution of private use materials[9]

Child participants in private use materials will be aged 14 to 17 years old.[10]

  1. ??
  2. R v Sharpe 2001 SCC 2, [2001] 1 SCR 45 at 109
  3. R. v. Dabrowski, 2007 ONCA 619
  4. Sharpe at para 116
  5. R. v. Keough, 2011 ABQB 48 at 282
  6. Sharpe at para. 128]
  7. R. v. Barabash, 2012 ABQB 99 at para 162
  8. Keough at para. 71
  9. R. v. Schultz, 2008 ABQB 679 at paras. 86-88
  10. R. v. Keough, 2011 ABQB 312 at para. 121

Accidental Download[edit]

Accidental download can be rebutted by way of evidence regarding the amount of child pornographic materials and the manner that it was stored.[1]

  1. e.g. R. v. Smith, [2008] O.J. No. 4558 (S.C.) at para. 28 - judge dismisses first-time accidental download claim

Innocent Possession[edit]

The doctrine of "innocent possession" is a potential defence to possession of child pornography. It is an exception to criminal liability where the control over the files was for the sole purpose of immediately destroying the materials or placing them beyond his control.[1]

By establishing this limited intention, there will be an absence of a blameworthy state of mind or blameworthy conduct. Mere technical findings of knowledge and control should not constitute possession.[2]

Innocent possession will generally not apply where the created and access dates of the deleted files show evidence that the user knowingly storing the files for a period of time before deleting them. Further evidence of selective deleting of files shows an intent to sort rather than destroy.[3]

  1. Braudy 2009 CanLII 2491 (ON SC) at para. 92 citing Chalk, at para. 23
  2. R. v. Chalk, 2007 ONCA 815, 227 C.C.C. (3d) 141 at 24
  3. See e.g. Braudy at para. 93 and 94

Relevant Motions[edit]

Publication Bans

Exclusion from Courtroom

History[edit]

Section 163.1 was enacted in 1993 (S.C. 1993, c. 46, s. 2) to add offences related to child pornography.[1]

On July 23, 2002, the offence of accessing child pornography was added as well as the forfeiture provisions.

On July 20, 2005, Bill C-2 amended s.163.1 to include mandatory minimum penalties and change the definition of child pornography for written and audio materials.[2]

On November 1, 2005, in response to the decision of R v Sharpe, s. 163.1(6) was amended to remove the common law public good defence and add the a defence on the basis that the acts "(1) had a legitimate purpose related to the administration of justice or to science, medicine, education or art; and (2) did not pose undue risk of harm to persons under the age of eighteen."

On August 9, 2012, this section was amended to increase the penalties as follows:

  • Making: Summary 90 days increased to 6 months
  • Distribution: Summary 90 days increased to 6 months
  • Possession: Indictable 45 days increased to 6 months / Summary 14 days increased to 90 days
  • Accessing: Indictable 45 days increased to 6 months / Summary 14 days increased to 90 days
  1. R. v. Katigbak, 2011 SCC 48 (CanLII), [2011] 3 SCR 326
  2. See Legislative History of Bill C-2

See Also[edit]

Child Luring[edit]

Child Luring
s. 172.1 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Summary Dispositions
Avail. Disp. Discharge (730)

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

Conditional Sentence (742.1)
Minimum 90 days jail
Maximum 18 months jail or $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Minimum 1 year jail
Maximum 10 years jail
References
Offence Elements
Sentence Principles
Sentence Digests
Comments
DNA Primary designated offence
SOIRA designated offence

Legislation[edit]

Luring a child
172.1 (1) Every person commits an offence who, by means of a computer system within the meaning of subsection 342.1(2), communicates with

(a) a person who is, or who the accused believes is, under the age of eighteen years, for the purpose of facilitating the commission of an offence under subsection 153(1), section 155 or 163.1, subsection 212(1) or (4) or section 271, 272 or 273 with respect to that person;
(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 280 with respect to that person; or
(c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.

Punishment
(2) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.

Presumption re age
(3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.

No defence
(4) It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.

2002, c. 13, s. 8; 2007, c. 20, s. 1; 2008, c. 6, s. 14; 2012, c. 1, s. 22.

CCC

Proof of Offence[edit]

172.1(1)(a)
The crown should prove the following elements:

  1. accused communicated by means of a computer system (see s. 342.1(2))
  2. the accused communicated to a person who
    1. is under the age of 18 or
    2. is believed to be under the age of 18
  3. accused’s “specific purpose” in communicating is to facilitate the commission of a specified secondary offence with respect to the under-aged person. (specifically section 153(1), 155 or 163.1, 212(1) or (4), 271, 272 or 273)

172.1(1)(b)
The crown should prove the following elements:

  1. accused communicated by means of a computer system (see s. 342.1(2))
  2. the accused communicated to a person who
    1. is under the age of 16 or
    2. is believed to be under the age of 16
  3. accused’s “specific purpose” in communicating is to facilitate the commission of a specified secondary offence with respect to the under-aged person. (specifically section 151, 152, 160(3) or 173(2) or 280)

172.1(1)(c)
The crown should prove the following elements:[1]

  1. accused communicated by means of a computer system (see s. 342.1(2))
  2. the accused communicated to a person who
    1. is under the age of 14 or
    2. is believed to be under the age of 14
  3. accused’s “specific purpose” in communicating is to facilitate the commission of a specified secondary offence with respect to the under-aged person. (specifically s. 281)


  1. R. v. Alicandro 2009 ONCA 133, R. v. Quinones, 2012 BCCA 94 at 5
    R. v. Legare, 2009 SCC 56 at 9

Interpretation[edit]

The purpose of s.172.1 is to “shut that door on predatory adults who, generally for a sexual purpose, troll the Internet for vulnerable children and adolescents. Shielded by the anonymity of an assumed online name and profile, they aspire to gain the trust of their targeted victims through computer “chats” — and then to tempt or entice them into sexual activity, over the Internet or, still worse, in person.”[1]

This is an “inchoate” offence that is separate and apart from the sexual offence that it precedes. It does not require the sexual offence to have happened. This includes not requiring that the accused actually go to meet the victim in person.[2] Nor is it necessary for the accused to be “objectively capable” to commit the secondary offence.[3]

  1. Legare at 2
  2. R. v. Legare, at 25
  3. Legare at 42

Purpose of Facilitating an Offence[edit]

It is not criminal to engage in sexually explicit chats with an underage person unless the prohibited purpose is established beyond a reasonable doubt.[1]

The intent must be specific to the objective and must be determined subjectively.[2]

Facilitating can include actions that help “bring about or [make] easier or more probable the commission of such an offence, by grooming or reducing the inhibitions of a young person or by exploiting their curiosity, immaturity or precocious sexuality”.[3]

The contents of the messages can be used but are not determinative of a sexual purpose.[4] The issue must be determined on the evidence as a whole. [5]

  1. R v Pengelley
  2. Legare at 32
  3. Legare at 28
  4. R. v. Legare, 2009 SCC 56 at 31
  5. ibid.

Reasonable steps to ascertain age[edit]

Under s. 172.1, the accused can only claim to have believed the alleged victim was not of a prohibited age where he took reasonable steps to ascertain the age of the victim. This is to foreclose any any defence based on claims of the accused without any objective evidential basis.[1]


  1. R. v. Levigne, 2010 SCC 25 at 31, 35

Typical Defences[edit]

  • If under s.172.1(1)(a) and the secondary offence is under s. 163.1, the defence of “private use”
  • Mistaken belief of age
  • Entrapment

Related provisions[edit]

  • s.486 - the judge may order the exclusion of members of the public

Cases[edit]

  • R v Pengelley, -- acquitted based on the evidence that the child’s account showed a picture of someone in their 20s.

History[edit]

On August 9, 2012, the section was amended to include a mandatory minimum of 90 days on summary conviction and 1 year on indictable election.

Other Sexual Offences[edit]

Bestiality[edit]

Bestiality
s. 160 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
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)
Maximum 6 months jail or $5,000 fine
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)
Maximum 10 years jail
References
Offence Elements
Sentence Principles
Sentence Digests
Comments
DNA Primary designated offence
SOIRA designated offence

Legislation[edit]

Bestiality
160. (1) Every person who commits bestiality is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

Compelling the commission of bestiality
(2) Every person who compels another to commit bestiality is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

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

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

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

CCC


Proof of the Offence[edit]

In addition to the essential elements of time, location, and identity, the prosecution should prove the following:

  1. the accused performs vaginal or anal intercourse with an animal

Interpretation[edit]

“Bestiality” has generally required that there be penetrative sex, either vaginal or anal with an animal. It does not include sexual acts involving genital touching or oral sex.[1]

  1. R. v. Ruvinsky [1998] O.J. No. 3621 ("[i]n my respectful opinion, "bestiality" is anal or vaginal intercourse with an animal, by a man or a woman. ... I do not believe that it is my role to expand the definition of this offence to include genital touching or licking. That responsibility lies with Parliament, who in their wisdom, have to date not defined the offence.")
    See also R v M.C. [2002] JQ No 8055, 2002 CanLII 45200

History[edit]

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

Voyeurism[edit]

Voyeurism
s. 162 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
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)
Maximum 6 months jail or $5,000 fine
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)
Maximum 5 years jail
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Voyeurism
162. (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;
(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or
(c) the observation or recording is done for a sexual purpose.

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

Exemption
(3) Paragraphs (1)(a) and (b) do not apply to a peace officer who, under the authority of a warrant issued under section 487.01, is carrying out any activity referred to in those paragraphs.

Printing, publication, etc., of voyeuristic recordings
(4) Every one commits an offence who, knowing that a recording was obtained by the commission of an offence under subsection (1), prints, copies, publishes, distributes, circulates, sells, advertises or makes available the recording, or has the recording in his or her possession for the purpose of printing, copying, publishing, distributing, circulating, selling or advertising it or making it available.

Punishment
(5) Every one who commits an offence under subsection (1) or (4)

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

Defence
(6) No person shall be convicted of an offence under this section if the acts that are alleged to constitute the offence serve the public good and do not extend beyond what serves the public good.

Question of law, motives
(7) For the purposes of subsection (6),

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

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

CCC

Proof of the Offence[edit]

The Crown must prove:[1]

  1. time
  2. location
  3. identity
  4. "surreptitious observation and/or recording"
  5. "where the observed or recorded person had a reasonable expectation of privacy,"
  6. either
    1. "exposure or expected exposure of genitals and/or breasts,"
    2. "sexual activity, or"
    3. "the observation or recording was for a sexual purpose."
  1. R. v. Keough, 2011 ABQB 48

Interpretation[edit]

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

  1. R v Keough, 2011 ABQB 48

Obscenity[edit]

Legislation[edit]

Corrupting morals
163. (1) Every one commits an offence who

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

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

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

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

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

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

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

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

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

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

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

CCC

Proving the Offence[edit]

In addition to the essential elements of time, location and identity, the crown should prove:

Interpretation[edit]


Sentencing[edit]

General Principles[edit]

Sexual assault has been called an "evil".[1]

  1. R. v. D.A.I., 2012 SCC 5 (CanLII), [2012] 1 SCR 149 at para. 1

Youthful Victims[edit]

Denunciation and deterrence have the highest priority in sentencing for offences involving the abuse of children.[1]

The principles of restraint and rehabilitation are still a factor but are secondary for offences involving young victims.[2]

A predatory sexual offence are those class of sexual offences where the offender uses the imbalance of power between himself and a victim, usually children, to satisfy sexual needs by way of a criminal offence.

Absent exceptional circumstances, denunciation, general and specific deterrence, and the need to separate offenders from society, take precedence over all other objectives of sentencing.[3]

Children are recognized as one of the "most valued and most vulnerable assets." They are generally incapable of defending themselves and so are easily targeted.[4]

It has been recognized by courts that child victims of sexual offences suffer from long lasting damage.[5] They suffer from emotional trauma that is often permanent. As adults they "may become incapable of forming loving relationship, always fearful of revictimization by sexual partners. Further, the matured victim may become a sexual predator himself. It is often that an offender will report being victimized by other sexual predators as a child."[6]

It has been suggested that sexual abuse of a child, particularly sexual intercourse, by a person in authority is in a range of 3 to 5 years.[7]

  1. R. v. Oliver 2007 NSCA 15, (2007), 250 N.S.R. (2d) 296 (C.A.), at para. 20 (“highest ranking among all of the principles of sentencing in cases involving the abuse of children. Parliament's intention is clearly stated.”)
  2. R. v. B.C.M. 2008 BCCA 365, (2008), 238 C.C.C. (3d) 174 (B.C.C.A.), at para 35 (“the principles of restraint and rehabilitation, while still operative, are given secondary status in offences involving young victims.”)
  3. R v D.D. (2002), 163 C.C.C. (3d) 471, 2002 CanLII 44915 (ON CA), at para. 34
    R. v. Woodward, 2011 ONCA 610 at para. 26
  4. R v DD at para. 35
  5. R v DD at para. 36
  6. R v DD para 37-38
  7. see for example R v W.W.M. [2006] OJ No. 440, 2006 CanLII 3262 (ONCA) at para 14

Grooming[edit]

Evidence of "grooming" a youthful victim is an aggravating factor in sexual offences involving children. [1]Grooming can take the form of cultivating a relationship of trust or undertaking a process of relinquishing inhibitions all with a view to advancing a plan to sexually exploit a young person. [2]

  1. R. v. G.C.F., 2004 CanLII 4771 (ON CA) at para. 21
    R. v. R.J.H., 2012 NLCA 52 (CanLII)
  2. Legare, 2009 SCC 56 (CanLII), [2009] 3 S.C.R. 551 at 28, 30

Position of Trust[edit]

A person in a position of trust who abuses children over a longer period of time will normally receive a sentence in the upper single digits or more.[1]

  1. R v M.D. 2012 ONCA 520

Historical Sex Offences[edit]

Historical Sexual Offences should not have their penalties reduced simply because of the time that has passed between the offence and sentence. The magnitude and culpability remain the same. [1]

However, the passage of time can show that the offender is a low risk to re-offend and that the offence is not in the character of the offender.


General Sex Offences[edit]

Sexual Assault[edit]

Sexual Assault
s. 271 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
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)*
Maximum 18 months jail or $5,000 fine
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)
Maximum 10 years jail
Designations
DNA primary designated offence

SOIRA designated offence

DO/LTO primary designated offence
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Sexual assault
271. Everyone who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding 10 years and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding 18 months and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of 90 days.


R.S., 1985, c. C-46, s. 271; R.S., 1985, c. 19 (3rd Supp.), s. 10; 1994, c. 44, s. 19; 2012, c. 1, s. 25.


CCC

Application[edit]

For general principles on sentence for sexual offences, see Sexual Offences

Principles[edit]

In Saskatchewan, major sexual assaults usually begin at 3 years incarceration.[1]

Sexual assault involving full intercourse of a minor by an adult in a position of trust is usually in the range of 3 to 7 years.[2] In Alberta, the starting point for a major sexual assault upon a minor by a person in a position of trust is 4 years.[3]

In Manitoba, major sexual assaults committed upon teenagers by person in a position of trust will start at 4 to 5 years.[4]

In Ontario, cases of sexual assault involving forced intercourse with a spouse or former spouse, sentences generally range from 21 months to four years[5]

A sexual assault is inherently violent, having an impact on the emotional and phychological well-being of the vicitms.[6]

It is only in the exceptional or rare cases that a sexual assault on children involving a breach of trust should warrant a conditional sentence.[7]


  1. R v. Jackson 1993 CanLII 4414 (SK C.A.), (1994), 87 C.C.C.(3d) 56
    R. v. Bird, (1993), 105 Sask.R. 161 and
    R. v. Cappo, (1994), 116 Sask. R. 1
  2. R. v. R.H., [2003] N.J. No. 336 (C.A.)
    R. v. Vokey, 2000 NLCA 14 at 19
    R. v. Freake, 2012 NLCA 10 at 25
  3. R. v. B.L., 2011 ABCA 375 at 7
    R. v. S. (W.B.); Powderface, 1992 CanLII 2761 (AB CA)
  4. R. v. D. (M.F.) [1991] M.J. No. 479 (MBCA)
  5. R. v. Smith, 2011 ONCA 564 at 87
    R. v. R.(B.S.) (2006), 81 O.R. (3d) 641 (C.A.), 2006 CanLII 29082 (ON CA)
    R. v. Jackson, 2010 ONSC 3910
    R. v. M.(B.), 2008 ONCA 645
    R. v. Nolan, 2009 ONCA 727
    R. v. Toor, 2011 ONCA 114
  6. R. v. Stuckless 1998 CanLII 7143 (ONCA) at p.334
  7. R. v. MacNaughton [1997] O.J. No. 4102 (C.A.), 1997 CanLII 960 (ON CA) at para 7 ("In our view it should only be in rare cases that a conditional sentence be imposed in cases of breach of trust involving the sexual touching of children by adults.")

Factors[edit]

Aggravating Factors
Factors that courts can be aggravating include:[1]

  • predatory sexual behaviour
  • forcible confinement
  • age of the victim and knowledge of true age
  • degree of vulnerability of victim (inarticulate, easily manipulated, disabled)
  • relationship of trust or offender was in position of authority
  • degree of invasion of sexual integrity
  • degree of violence or force used
  • repeated acts of violence
  • whether a weapon was involved
  • manner of interference (attempted acts, kissing, touching outside of clothes, touching inside of clothes, digital penetration, oral sex, full intercourse)
  • whether there was penetration (digital or penile) / if so, whether there was risk of STDs
  • impact on the victim, family and offender
  • public abhorrence to the offence
  • attitude of the offender
  • biological or psychological factors
  • likelihood of rehabilitation
  • likelihood of reoffence

Mitigating Factors

  • Age of offender
  • guilty plea (early or late, saved resources)
  • prior record (related or unrelated)

Voluntariness of a child victim cannot be used as a mitigating factor.[2] Rather, the existence of consent can be used as an absence of a aggravating factor.[3]


  1. see R. v. Atkins 1988 CanLII 201 (NL CA), (1988), 69 Nfld. & P.E.I.R. 99 - supports some of the factors listed here
  2. R. v. Hann, (1992), 75 C.C.C. (3d) 355 (N.L.C.A.)
    c.f. R v Allen (1989), 77 Nfld. & P.E.I.R. 138 (NLCA)
  3. R v Revet 2010 SKCA 71

Ancillary Orders[edit]

  • Section 109 weapons prohibition (Mandatory)
  • DNA sampling (s. 487.051)
  • Section 161 Order (if involving person under age 16)
  • Section 743.21 no contact order while in custody

Recommended Probationary Terms[edit]

  • No contact with victim
  • No contact with persons under age of 16 (if facts involve victim under the age of 16)
  • Treatment/Counselling
  • No alcohol or drugs (if facts involve them)


Sexual Assault with a Weapon[edit]

Sexual Assault with a Weapon
s. 272 of the Crim. Code
Election / Plea
Crown Election Indictable
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
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 Restricted firearm:
5 years (first)
7 years (second or more)
Other firearms:
4 years
Maximum 14 years jail
Designations
DNA Primary designated offence

SOIRA designated offence

DO/LTO primary designated offence
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Sexual assault with a weapon, threats to a third party or causing bodily harm
272. (1) Every person commits an offence who, in committing a sexual assault,

(a) carries, uses or threatens to use a weapon or an imitation of a weapon;
(b) threatens to cause bodily harm to a person other than the complainant;
(c) causes bodily harm to the complainant; or
(d) is a party to the offence with any other person.


Punishment
(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of four years; and
(a.2) if the complainant is under the age of 16 years, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of five years; and
(b) in any other case, to imprisonment for a term not exceeding fourteen years.


Subsequent offences
(3) In determining, for the purpose of paragraph (2)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under this section;
(b) an offence under subsection 85(1) or (2) or section 244 or 244.2; or
(c) an offence under section 220, 236, 239 or 273, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.


Sequence of convictions only
(4) For the purposes of subsection (3), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
R.S., 1985, c. C-46, s. 272; 1995, c. 39, s. 145; 2008, c. 6, s. 28; 2009, c. 22, s. 10; 2012, c. 1, s. 26.


CCC

Application[edit]

For general principles on sentence for sexual offences, see Sexual Offences

Ancillary Orders[edit]

  • SOIRA
  • DNA Order


Sexual Assault Causing Bodily Harm[edit]

Sexual Assault Causing Bodily Harm
s. 272 of the Crim. Code
Election / Plea
Crown Election Indictable
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
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 Restricted firearm:
5 years (first)
7 years (second or more)
Other firearms:
4 years
Maximum 14 years jail
Designations
DNA Primary designated offence

SOIRA designated offence

DO/LTO primary designated offence
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Sexual assault with a weapon, threats to a third party or causing bodily harm
272. (1) Every person commits an offence who, in committing a sexual assault,

(a) carries, uses or threatens to use a weapon or an imitation of a weapon;
(b) threatens to cause bodily harm to a person other than the complainant;
(c) causes bodily harm to the complainant; or
(d) is a party to the offence with any other person.

Punishment
(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of four years; and
(a.2) if the complainant is under the age of 16 years, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of five years; and
(b) in any other case, to imprisonment for a term not exceeding fourteen years.

Subsequent offences
(3) In determining, for the purpose of paragraph (2)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under this section;
(b) an offence under subsection 85(1) or (2) or section 244 or 244.2; or
(c) an offence under section 220, 236, 239 or 273, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
Sequence of convictions only
(4) For the purposes of subsection (3), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
R.S., 1985, c. C-46, s. 272; 1995, c. 39, s. 145; 2008, c. 6, s. 28; 2009, c. 22, s. 10; 2012, c. 1, s. 26.


CCC

Application[edit]

For general principles on sentence for sexual offences, see Sexual Offences

Ancillary Orders[edit]

  • SOIRA
  • DNA Order

See Also[edit]

Aggravated Sexual Assault[edit]

Aggravated Sexual Assault
s. 273 of the Crim. Code
Election / Plea
Crown Election Indictable
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
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)
Maximum 5 years jail (first)
7 years jail (second)
References
Offence Elements
Sentence Principles
Sentence Digests
Comments
DNA Primary designated offence

SOIRA designated offence

DO/LTO primary designated offence

Legislation[edit]

Aggravated sexual assault
273. (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.

Aggravated sexual assault
(2) Every person who commits an aggravated sexual assault is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(a.2) if the complainant is under the age of 16 years, to imprisonment for life and to a minimum punishment of imprisonment for a term of five years; and
(b) in any other case, to imprisonment for life.

Subsequent offences
(3) In determining, for the purpose of paragraph (2)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under this section;
(b) an offence under subsection 85(1) or (2) or section 244 or 244.2; or
(c) an offence under section 220, 236, 239 or 272, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence.
However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

Sequence of convictions only
(4) For the purposes of subsection (3), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.

R.S., 1985, c. C-46, s. 273; 1995, c. 39, s. 146; 2008, c. 6, s. 29; 2009, c. 22, s. 11; 2012, c. 1, s. 27.

CCC

Application[edit]

For general principles on sentence for sexual offences, see Sexual Offences

Principles[edit]

Factors[edit]

Keeping Common Bawdy-house[edit]

Keeping common bawdy-house
210. (1) Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
Landlord, inmate, etc.
(2) Every one who

(a) is an inmate of a common bawdy-house,
(b) is found, without lawful excuse, in a common bawdy-house, or
(c) as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house,


is guilty of an offence punishable on summary conviction.
Notice of conviction to be served on owner
(3) Where a person is convicted of an offence under subsection (1), the court shall cause a notice of the conviction to be served on the owner, landlord or lessor of the place in respect of which the person is convicted or his agent, and the notice shall contain a statement to the effect that it is being served pursuant to this section.
Duty of landlord on notice
(4) Where a person on whom a notice is served under subsection (3) fails forthwith to exercise any right he may have to determine the tenancy or right of occupation of the person so convicted, and thereafter any person is convicted of an offence under subsection (1) in respect of the same premises, the person on whom the notice was served shall be deemed to have committed an offence under subsection (1) unless he proves that he has taken all reasonable steps to prevent the recurrence of the offence.
R.S., c. C-34, s. 193.

Transporting person to bawdy-house
211. Every one who knowingly takes, transports, directs, or offers to take, transport or direct, any other person to a common bawdy-house is guilty of an offence punishable on summary conviction.
R.S., c. C-34, s. 194.

CCC

Application[edit]

For general principles on sentence for sexual offences, see Sexual Offences

Principles[edit]

Factors[edit]

Ancillary Orders[edit]

Ranges[edit]

See Also[edit]

Procuring and Living on the Avails of Prostitution[edit]

Procuring and Living on Avails
s. 212 of the Crim. Code
Election / Plea
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
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)
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Procuring
212. (1) Every one who

(a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada,
(b) inveigles or entices a person who is not a prostitute to a common bawdy-house for the purpose of illicit sexual intercourse or prostitution,
(c) knowingly conceals a person in a common bawdy-house,
(d) procures or attempts to procure a person to become, whether in or out of Canada, a prostitute,
(e) procures or attempts to procure a person to leave the usual place of abode of that person in Canada, if that place is not a common bawdy-house, with intent that the person may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada,
(f) on the arrival of a person in Canada, directs or causes that person to be directed or takes or causes that person to be taken, to a common bawdy-house,
(g) procures a person to enter or leave Canada, for the purpose of prostitution,
(h) for the purposes of gain, exercises control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally,
(i) applies or administers to a person or causes that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual intercourse with that person, or
(j) lives wholly or in part on the avails of prostitution of another person,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Living on the avails of prostitution of person under eighteen
(2) Despite paragraph (1)(j), every person who lives wholly or in part on the avails of prostitution of another person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of two years.

Aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years
(2.1) Notwithstanding paragraph (1)(j) and subsection (2), every person who lives wholly or in part on the avails of prostitution of another person under the age of eighteen years, and who

(a) for the purposes of profit, aids, abets, counsels or compels the person under that age to engage in or carry on prostitution with any person or generally, and
(b) uses, threatens to use or attempts to use violence, intimidation or coercion in relation to the person under that age,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years but not less than five years.

Presumption
(3) Evidence that a person lives with or is habitually in the company of a prostitute or lives in a common bawdy-house is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution, for the purposes of paragraph (1)(j) and subsections (2) and (2.1).

Offence — prostitution of person under eighteen
(4) Every person who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of six months.

(5) [Repealed, 1999, c. 5, s. 8]

R.S., 1985, c. C-46, s. 212; R.S., 1985, c. 19 (3rd Supp.), s. 9; 1997, c. 16, s. 2; 1999, c. 5, s. 8; 2005, c. 32, s. 10.1.

CCC

Application[edit]

For general principles on sentence for sexual offences, see Sexual Offences

Principles[edit]

Factors[edit]

Ancillary Orders[edit]

  • SOIRA
  • DNA

Ranges[edit]

Procuring Under-age Prostitutes

  • R. v. Johnson, 2008 SKQB 244--9 months--the offender offered the complainant sex in exchange for money and a job--offender was a gas station manager, prior record for interference--occurred over 3 years--video taped sex acts, including mutual masturbation and fellatio--also convicted of making child pornography (3 months)
  • R. v. Wasser (2007), 2007 CarswellOnt 4150--offender participated in sex with bondage with a 15 year old, spurred on by an 18 year old pimp--offender was unemployed trained engineer
  • R. v. L.D.W., 2007 SKCA 79 - 18 months -- 7 months credit given, offender offers to drive 17 year old victim in exchange for sex
  • R. v. S. (G.E.), 2007 MBCA 105 -- 1 year CSO -- offender met complainant through internet, offered a laptop for fellatio
  • R. v. Whitefish, 2007 SKCA 79 --18 months--offender offered $40 for sex with adopted step-sister 15 years old--confronted by wife, offender assaults her causing bodily harm
  • R. v. Vanoirschot, 2006 SKCA 130 -- 4 months --offender was 61 years old, no record--unsuccessful in trying to purchase sex from 17 year old prostitute
  • R. v. Aldea, 2005 SKQB 461-- 12 months --
  • R. v. Goohsen, 2000 SKCA 37--4 month CSO--
  • R. v. Kim, 2000 BCSC 1506--2.5 years--over a year, the offender picked up young prostitutes under 15, had sex with them and then threatened or assaulted them--paedophelic tendencies--2 years remand credit--also convicted of sexual assault, assault, threats and other offences.
  • R. v. Nathoo, 1999 ABCA 60--90 days--undercover officer posed as 17 year old girl
  • R. v. Maheu, 1997 CanLII 10356 (QC CA), (1997), 116 C.C.C. (3d) 361 (Que. C.A.)-- 12 months -- teacher invited student to home, leant money and resulted in sexual activity. No remorse.
  • R. v. Kowtalo, (1993), 85 Man. R. (2d) 239 (Man. C.A.) -- 60 days -- involved "streetwise" victims, no record.
  • R. v. M.A.R., 1990 CanLII 4257 (NS CA)--6 months each--two instances of soliciting sex from boys under 16.

Procuring and Living on the Avails of Prostitution[edit]

Solicitation
s. 213 of the Crim. Code
Election / Plea
Crown Election Summary
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)
Maximum 6 months jail or $5,000 fine
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Offence in relation to prostitution
213. (1) Every person who in a public place or in any place open to public view

(a) stops or attempts to stop any motor vehicle,
(b) impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place, or
(c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person

for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.

Application[edit]

Principles[edit]

Factors[edit]

Ancillary Orders[edit]

  • SOIRA
  • DNA Order

Ranges[edit]

See Also[edit]

Sexual Offences Against Children[edit]

Sexual Interference[edit]

Sexual Interference
s. 151 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Summary Dispositions
Avail. Disp. Discharge (730)

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

Conditional Sentence (742.1)
Minimum 90 days jail
Maximum 18 months jail or $5,000 fine
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 jail
Maximum 10 years jail
References
Offence Elements
Sentence Principles
Sentence Digests
Comments
DNA primary designated offence

SOIRA designated offence

DO/LTO primary designated offence

Legislation[edit]

Sexual interference
151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.


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


CCC

Application[edit]

For general principles for sexual offences see Canadian Criminal Sentencing/Offences/Sexual Offences

Principles[edit]

It is an aggravating factor for the offender to have been in a position of trust. A position of trust is distinctive from a position of authority and will be determined on the specific facts including the conduct of the offender.[1]

Unless there are exceptional circumstances, the range of sentence for sexual intercourse with a child by a person in a position of trust is 3 to 5 years.[2]


  1. Audet 1996 CanLII 198 (SCC), [1996] 2 SCR 171
  2. R. v. W.W.M., [2006] O.J. No. 440, 2006 CanLII 3262 (ON CA) at para 14

Factors[edit]

Aggravating Factors

  • Youthful age of Victim
  • degree of vulnerability of victim (inarticulate, easily manipulated, disabled)
  • significant gap in age between parties
  • offender in a position of trust or authority to victim
  • manner of interference (attempted acts, kissing, touching outside of clothes, touching inside of clothes, digital penetration, oral sex, full intercourse)
  • number of instances of interference
  • duration of each instance

Mitigating Factors

  • Youthful offender
  • guilty plea (early or late, saved resources)
  • prior record (related or unrelated)

Ancillary Orders[edit]

Offence-related Probationary Terms[edit]

  • No contact with victim
  • No contact with persons under age of 16
  • Treatment/Counselling
  • No alcohol or drugs (if facts involve them)

History[edit]

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

Invitation to Sexual Touching[edit]

Invitation to Sexual Touching
s. 152 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Summary Dispositions
Minimum 90 days jail
Maximum 18 months jail or $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Minimum 1 year jail
Maximum 10 years jail
References
Offence Elements
Sentence Principles
Sentence Digests
Comments
DNA Primary designated offence

SOIRA designated offence

DO/LTO primary designated offence

Legislation[edit]

Invitation to sexual touching
152. Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16 years,

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.


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


CCC

Application[edit]

For General Principles on Sentence for Sexual offences, see Sexual Offences

Principles[edit]

Factors[edit]

Ancillary Orders[edit]

History[edit]

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


Sexual Exploitation[edit]

Sexual Exploitation
s. 153 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Summary Dispositions
Avail. Disp. Discharge (730)

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

Conditional Sentence (742.1)
Minimum 90 days jail
Maximum 18 months jail
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 jail
Maximum 10 years jail
Designations
DNA Primary designated offence

SOIRA designated offence

DO/LTO primary designated offence
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Sexual exploitation
153. (1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who

(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or
(b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person.

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

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.

...

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

CCC

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

Application[edit]

For General Principles on Sentence for Sexual offences, see Sexual Offences

Ancillary Orders[edit]

Ranges[edit]

History[edit]

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


Agree or Arrange a Sexual Offence Against Child[edit]

Note: this offence has not come into force yet.

Legislation[edit]

Agreement or arrangement — sexual offence against child
172.2 (1) Every person commits an offence who, by a means of telecommunication, agrees with a person, or makes an arrangement with a person, to commit an offence

(a) under subsection 153(1), section 155, 163.1, 170 or 171 or subsection 212(1), (2), (2.1) or (4) with respect to another person who is, or who the accused believes is, under the age of 18 years;
(b) under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to another person who is, or who the accused believes is, under the age of 16 years; or
(c) under section 281 with respect to another person who is, or who the accused believes is, under the age of 14 years.

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

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.

(3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of 18, 16 or 14 years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.

(4) It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.

(5) It is not a defence to a charge under paragraph (1)(a), (b) or (c)

(a) that the person with whom the accused agreed or made an arrangement was a peace officer or a person acting under the direction of a peace officer; or
(b) that, if the person with whom the accused agreed or made an arrangement was a peace officer or a person acting under the direction of a peace officer, the person referred to in paragraph (1)(a), (b) or (c) did not exist.

CCC

Application[edit]

For general principles on sentence for sexual offences, see Sexual Offences

Ancillary Orders[edit]

Computer Sex Offences[edit]

Child Pornography[edit]

Child Pornography
s. 163.1 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Summary Dispositions
Avail. Disp. Discharge (730)

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

Conditional Sentence (742.1)
Minimum 90 days jail (poss'n/access)
6 months jail (make/distrib.)
Maximum 18 months jail
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 6 months days jail (poss'n/access)
1 year jail (make/distrib.)
Maximum 5 years jail (poss'n/access)
10 years jail (make/distrib.)
References
Offence Elements
Sentence Principles
Sentence Digests
Comments
DNA Primary designated offence
SOIRA designated offence


Overview[edit]

There are four forms of child pornography offences. They relate to the possession, access, distribution/making available, and making of child pornography.

All child pornography offences are treated seriously and are given jail sentences. On the lower end range of offence, there are the simple possession or accessing cases where typically the materials are discovered inadvertently on a computer by a third party. A more serious form of the offence is where the materials are discovered by way of an investigation into peer-to-peer file sharing activities. This usually involves both possession and making available charge. This is considered troubling since peer-to-peer software is one of the most popular form of distributing child pornography globally. Both of these cases will largely turn on the size of the collection as a measure of their interest in the materials. Child luring charges will often involve distribution charges as the offender will often send these materials to the targeted victim as a method of grooming. On the high end of the range of child pornography offences, there are the offenders who produce child pornography. This usually involves offender who manipulate children into participating in sexual posing or sexual activity which was filmed. It can be particularly serious where the child is subject of major and repeated sexual activity, perpetrated by a person in authority such as a family member.

Legislation[edit]

163.1
...
Making child pornography
(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding two years less a day and to a minimum punishment of imprisonment for a term of six months.

Distribution, etc. of child pornography
(3) Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding two years less a day and to a minimum punishment of imprisonment for a term of six months.

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

(a) an indictable offence and is liable to imprisonment for a term of not more than five years and to a minimum punishment of imprisonment for a term of six months; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.


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

(a) an indictable offence and is liable to imprisonment for a term of not more than five years and to a minimum punishment of imprisonment for a term of six months; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.

...
Aggravating factor
(4.3) If a person is convicted of an offence under this section, the court that imposes the sentence shall consider as an aggravating factor the fact that the person committed the offence with intent to make a profit.
...
Question of law
(7) For greater certainty, for the purposes of this section, it is a question of law whether any written material, visual representation or audio recording advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

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


CCC

Principles[edit]

For general principles on sentence for sexual offences, see Sexual Offences

The prohibition and criminalization of child pornography arises out of society’s interest to protect children. [1] The material exploits and dehumanizes children. The children are re-victimized with each viewing of the materials.

Child pornography presents a "profound and present danger to children around the world".[2]

The pornography "hinders children’s own self-fulfilment and autonomous development by eroticising their inferior social, economic and sexual status".[3]

There is a judicially recognized "link between images of child pornography and inhibitions about the sexual abuse of children." [4]


  1. Sharpe at 28
  2. TLB, 2007 ABCA 61 at para. 27
  3. Sharpe at 185
  4. R. v. Strohmeier, [2007] O.J. No. 1250 (Ont. C.J.) ("... there is a link between images of child pornography and inhibitions about the sexual abuse of children.")

Possession[edit]

The primary principles for possession offences are denunciation and general deterrence.[1]

Possession of child pornography contributes to the market for child pornography which drives the production of the materials.[2] Possession also breaks down inhibitions, and creates cognitive distortions that abuse is not harmful. In certain individuals, it will fuel fantasies and incite them to commit offences.[3]

The sentence for possession of child pornography recognizes the link between possession of the materials and the sexual abuse of children beyond the images themselves.[4]

In Alberta, the range for possession of child pornography starts at around 12 months. [5] However, it will vary significantly with the size of the collection.

Across all provinces, sentences for possession is between the minimum and 2 years jail, even where accompanied by other charges.

  1. R v Missions 2005 NSCA 82
  2. Sharpe at 28
    R. v. Fisher, [2007] N.B.J. No. 129 at para 16
    R. v. Stroempl 1995 CanLII 2283 (ON CA), (1995), 105 C.C.C. (3d) 187 at page 191
  3. Sharpe at 85 to 94
    R. v. Steadman, [2001] A.J. No. 1563 at paras 21 and 22
  4. e.g. R. v. Durnford, 2006 CanLII 34694 (NL PC) at 77
  5. R v Hilderman 2010 ABC 183 at 15

Accessing[edit]

The primary objective for sentencing in possession of child pornography is denunciation and deterrence. [1]

Making[edit]

Charge of making can apply the same principles as sexual assault or interference offences against children where the accused is effectively a party to the sexual acts committed against the child.

Distribution[edit]

The primary principles for distribution offences are denunciation and deterrence.[2]

In Alberta, there is typically a general range of sentence between 3 and 18 months followed by one to three years probation for distribution of child pornography. [3]

  1. R. v. Stroemple 105 C.C.C. (3d) 187 (ONCA)1995 CanLII 2283 p.191
    R. v. Hewlett, (2002).167 C.C.C. (3d) 425,p. 432 (ABCA)
    R. v. Hunt [2002] A.J. No. 831, 2002 ABCA 155 para 41
  2. R v B(TL) , 2007 ABCA 61, (2007) 218 CCC (3d) 11 (ABCA) leave to SCC refused
  3. R. v. Shelton 2006 ABCA 190, (2006), 391 A.R. 177 (Alta. C.A.), per Justice Fruman at para 12

Factors[edit]

Aggravating factors include: [1]

  1. Where the images were shown or distributed to a child.
  2. the amount of images or videos collected[2]
  3. the level of sophistication of the collection. This is determined by way of how it was organized on a computer. It will sometimes indicate the level of trading or level of personal interest in the material. On the low end would include images viewed but not stored on the computer.
  4. Whether images or videos were posted on public areas of the internet, “or distributed in a way making it more likely they will be found accidentally by computer users not looking for pornographic material”
  5. where the offender is responsible for the original production of the images, in particular where the victims were members of the offender’s family, or drawn from particularly vulnerable groups, or if the offender has abused a position of trust, as in the case of a teacher, friend of the family, social worker, or youth group leader.
  6. The age of the children depicted. The younger the child, the greater the psychological harm, including fear and distress, and the greater likelihood of physical injury.
  7. the degree of intrusion and repulsivity of any sexual acts depicted. This is in part captured by the categories in Missions 2005 NSCA 82.
  8. the manner in which the images were obtained : simple downloading through file-sharing programs, other non-commerical means versus purchases on websites or international connections.
  9. signs on potential distribution or production.
  10. related criminal record;
  11. evidence that the offender has pedophilic tendencies or diagnosis of paedophilia.

Mitigating factors considered:[3]

  1. the youthful age of the offender;
  2. the otherwise good character of the offender;
  3. the extent to which the offender has shown insight into his problem;
  4. whether he has demonstrated genuine remorse;
  5. whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment;
  6. the existence of a guilty plea; and
  7. the extent to which the offender has already suffered for his crime.

The lack of a profit motive is not a mitigating factor. Most traders are not doing it for money.[4]

Classification of Materials[edit]

Depictions of child pornography can be categorized into one of five categories, from least serious to most serious: [5]

  1. images depicting erotic posing with no sexual activity;
  2. sexual activity between children, or solo masturbation by a child;
  3. non-penetrative sexual activity between adults and children;
  4. penetrative sexual activity between children and adults; and
  5. sadism or bestiality.
  1. R. v. Saddler, 2009 NSWCCA 83 also referred to Regina v Oliver, Hartrey and Baldwin [2004] UKHL 43; [2003] 1 Cr App R 28; R. v. Durnford, 2006 CanLII 34694 (NL PC) at 77
  2. R. v. Donnelly, 2010 BCSC 1523 at 36 Donnelly discusses the importance of the number of images to the range of sentence
  3. R. v. Kwok, 2007 CanLII 2942 (ONSC)
    R. v. Parise, [2002] O.J. No. 2513 (ONCJ)
    R. v. Mallett, [2005] O.T.C. 792 at paras. 15-16 (ONSC)
  4. R. v. T.L.B. at para 28
  5. R. v. Missions, 2005 NSCA 82 at para 14

Other Issues[edit]

Procedure
Judges are required to accept into evidence and review images of child pornography submitted by the Crown as part of sentencing where the usual exclusionary principles do not apply.[1]


Misc
Probationary terms added as part of sentences for child pornography will often include conditions prohibiting or limiting use of "Computer Systems" as defined in s. 342.1

  1. R. v. Hunt, 2002 ABCA 155
    R. v. P.M., 2012 ONCA 162

Ancillary Orders[edit]

Offence-related Probation Terms[edit]

  • No contact with persons under age of 18
  • Treatment/Counselling
  • No alcohol or drugs (if alcohol had connection to alcohol)
  • no use or access to computers
    • not to possess or use a digital device or computer system that is capable of connecting with the internet except for the purpose of employment or an educational program.
  • not possess or access child or adult pornography;
  • not possess or access any images of children who are, depicted to be or appear to be under the age of 18 years who are naked or who are portrayed in a sexual manner;
  • Not own or possess a computer or any similar electronic device capable of accessing the internet except for a purpose necessary for registered academic studies or for the purposes of employment and in such circumstances as are approved beforehand in writing by the court or the supervisor
  • provide computer service billing information to the authorities[1]

History[edit]

On August 9, 2012, this section was amended to increase the penalties as follows:

  • Making: Summary 90 days increased to 6 months
  • Distribution: Summary 90 days increased to 6 months
  • Possession: Indictable 45 days increased to 6 months / Summary 14 days increased to 90 days
  • Accessing: Indictable 45 days increased to 6 months / Summary 14 days increased to 90 days


Child Luring[edit]

Child Luring
s. 172.1 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Summary Dispositions
Avail. Disp. Discharge (730)

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

Conditional Sentence (742.1)
Minimum 90 days jail
Maximum 18 months jail or $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Minimum 1 year jail
Maximum 10 years jail
References
Offence Elements
Sentence Principles
Sentence Digests
Comments
DNA Primary designated offence
SOIRA designated offence

Legislation[edit]

Luring a child
172.1 (1) Every person commits an offence who, by means of a computer system within the meaning of subsection 342.1(2), communicates with

(a) a person who is, or who the accused believes is, under the age of eighteen years, for the purpose of facilitating the commission of an offence under subsection 153(1), section 155 or 163.1, subsection 212(1) or (4) or section 271, 272 or 273 with respect to that person;
(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 280 with respect to that person; or
(c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.


Punishment
(2) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.


...
2002, c. 13, s. 8; 2007, c. 20, s. 1; 2008, c. 6, s. 14; 2012, c. 1, s. 22.


CCC

Application[edit]

For general principles on sentence for sexual offences, see Sexual Offences

Principles[edit]

The purpose of the enactment of s. 172.1 was "to shut [the] door on predatory adults who, generally for a sexual purpose, troll the Internet for vulnerable children and adolescents. Shielded by the anonymity of an assumed online name and profile, they aspire to gain the trust of their targeted victims through computer "chats" -- and then to tempt or entice them into sexual activity, over the Internet or, still worse, in person.”[2]

The focus should be on denunciation and deterrence resulting in some institutional time.[3]

The starting point for luring with no record is 12 months[4] and typically runs as high as 24 months.[5] Where there is a record the range is between 15 to 24 months. Two years or more is usually where the offence includes another related sexual offence.[6]

  1. e.g. in R. v. Ingvaldson, 2012 BCPC 437 (CanLII)
  2. R. v. Legare, 2009 SCC 56
  3. R. v. Folino, 2005 CanLII 40543 (ON CA) at 25
    R. v. Jepson, [2004] O.J. No. 5521 (Sup. Ct.) at para. 19
  4. R v Daniels 2008 ABPC 252
  5. R. v. Jarvis (2006), 211 C.C.C. (3d) 20 (ONCA) at para. 31
    R v Folino at para. 25
    R. v. Alicandro, 2009 ONCA 133 at para. 49
  6. R v Daniels, ibid

Factors[edit]

Aggravating[edit]

  • Age or simulated age of complainant
  • the offender sending explicit images to victim
  • amount of grooming done by offender (amount of sex talk, encouragement to perform sex acts)
  • communications over a long duration
  • offender attempted to arrange a meeting
  • meeting resulted in sexual assault or attempt
  • offence included the creation of child pornography

Mitigating[edit]

  • youthful offender
  • offender close in age to complainant
  • complainant was simulated by undercover officer

Conditional Sentences[edit]

Conditional sentences have been said to be available in the "rarest of cases".[1] Other courts have commented that this "rareness" standard is too strict.[2] It was suggested that at the least, exceptional circumstances are expected:[3]

  1. a negligible risk of recidivism
  2. acceptance of responsibility
  3. Participation and progress in an appropriate treatment program
  4. a devastating impact on the offender and his family
  5. assaults by other inmates while in custody awaiting release
  6. medical evidence suggesting encarceration would put him at “risk of fatal dissociation culminating in possible suicide..." and being in a "very fragile mental and physical state”.
  1. R v Folino at para. 25
  2. R v El-Jamel, 2010 ONCA 575 at para 17
  3. R v El-Jamel, 2010 ONCA 575 at para 36 Watt J.A. in dissent

Recommended Probationary Terms[edit]

  • No contact with victim or victim's family (if facts involve actual child)
  • No contact with persons under age of 16 or 18
  • No access or possession of devices capable of accessing the internet
  • Treatment/Counselling
  • No alcohol or drugs (if facts involve them)

Ancillary Orders[edit]


See Also[edit]

Other Sexual Offences[edit]

Bestiality[edit]

Bestiality
s. 160 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
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)
Maximum 6 months jail or $5,000 fine
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)
Maximum 10 years jail
References
Offence Elements
Sentence Principles
Sentence Digests
Comments
DNA Primary designated offence
SOIRA designated offence

Legislation[edit]

Bestiality
160. (1) Every person who commits bestiality is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.
Compelling the commission of bestiality
(2) Every person who compels another to commit bestiality is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.
Bestiality in presence of or by child
(3) Despite subsection (1), every person who commits bestiality in the presence of a person under the age of 16 years, or who incites a person under the age of 16 years to commit bestiality,

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

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


CCC

Application[edit]

For general principles on sentence for sexual offences, see Sexual Offences

Principles[edit]

Factors[edit]

Ancillary Orders[edit]

Ranges[edit]

  • R. v. L.M.R., 2010 ABCA 286 (CanLII) - 1 year - a very young child who had her vagina licked by a dog
  • R. v. Black, 2007 SKPC 46 (CanLII), 296 Sask.R. 289 - 1 year - also sentenced for child sex offences and making CP for a total of 4 years. Offender recorded a woman having her genitals licked by a dog and stimulated the dog. He had limited cognitive ability and had paedophilic character.
  • R. v. J.J.B.B. 2007 BCPC 426 - 15 months - Over a period of time, the offender sexually abused his niece aged 3 to 5. At three different times he recorded two dogs licking her genitals.
  • R. v. Gibbon, 2005 BCSC 935 -- 2 years -- also sentenced for possession and distribution of child porn (2 years), and sexual assault -- found to be a Dangerous Offender
  • R. v. Pye, 2005 BCPC 355 (CanLII) - 2 years - offender had sex with dog in public

History[edit]

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

Voyeurism[edit]

Voyeurism
s. 162 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
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)
Maximum 6 months jail or $5,000 fine
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)
Maximum 5 years jail
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Voyeurism
162. (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;
(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or
(c) the observation or recording is done for a sexual purpose.

...

Printing, publication, etc., of voyeuristic recordings
(4) Every one commits an offence who, knowing that a recording was obtained by the commission of an offence under subsection (1), prints, copies, publishes, distributes, circulates, sells, advertises or makes available the recording, or has the recording in his or her possession for the purpose of printing, copying, publishing, distributing, circulating, selling or advertising it or making it available.

Punishment
(5) Every one who commits an offence under subsection (1) or (4)

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

...

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

[4]

Application[edit]

Principles[edit]

Factors[edit]

Ancillary Orders[edit]

Ranges[edit]

  • R. v. Desilva 2011 ONCJ 133 -- 7 months + 3 yrs probation -- offender made videos of sexual activity between him and partner without consent. Offender posted videos on facebook, and sent links of video to friends. convicted at trial of voyeurism and criminal harassment. Prior record with violence.* R. v. F.G., 2011 308 Nfld & P.E.I.R. 59 -- 3 month CSO + 3 yr probation -- secretly installed a video camera in 17 year old daughter’s bedroom, huge violation of privacy, recorded full frontal nudity, breach of trust, no record
  • R. v. J.H.N., 2010 BCPC 155 -- S/S -- attended residence of two teenage girls repeatedly and watched them undress multiple times. No record, positive psych report
  • R. v. S.M. 2010 ONCJ 347 || S/S + 18 mo || accused secretly videotaped consensual explicit sexual activity at a hotel room of ex-girlfriend. Offender was mature, well‑educated and successful. no prior criminal record. Offence required planning.
  • R. v. Laskaris 2008 BCPC 130 -- discharge -- invasion of privacy, offender was dentist who places cameras in women’s washroom to monitor for theft from office, was in position of trust, no record.
  • R. v. Grice 2008 ONCJ 476 -- S/S -- offender video taped estranged wife in bathroom. guilty plea, no prior record.
  • R. v. Weinheimer 2007 ABPC 349 -- S/S -- offender secretly photographed 15 men in washroom at his work. Images were stored on computer with details on personal information. No evidence of distirbution, positive psych report.

See Also[edit]

Obscenity[edit]

Legislation[edit]

Corrupting morals
163. (1) Every one commits an offence who

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

...

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

CCC

Application[edit]

Principles[edit]

Factors[edit]

Ancillary Orders[edit]

Ranges[edit]

See Also[edit]


Digests[edit]

Sexual Assault[edit]

Touching or Attempts[edit]

Case Cite Sentence Summary
R v Wilson 2012 NBQB 326 (CanLII) 24 months bartender sexually assaulted female in washroom--forced oral sex, fondled her breasts, fingered her and tried to stick a sex toy in her anal region, attempted intercourse--victim fell and was permanently injured during incident.
R. v. Boden 2012 BCPC 331 (CanLII) 6 to 9 months also sentenced to assault peace officer--offender grabbed the buttocks of two women unknown to him in an attempt to flirt with them
R. v. T.J.H. 2012 BCPC 115 discharge touching over clothes--no SOIRA ordered because not a "conviction"
R v Martell 2012 SKPC 47 9 months sexual assault of person at a party. Female was passed out naked, offender fondled breasts, undressed himself, got on top of her, no evidence of injury or penetration.
R v Tuffs 2012 SKCA 6 12 months hand down pants, touching of genitals, Crown appeal of S/s
R. v. Pratt 2011 BCPC 382 5 years digital penetration; oral sex; attempted intercourse; violence used
R. v. Trotman 2011 ONCJ 604 8 months grabbing 15 year old girl multiple times; hugs and kisses
R. v. Ince 2011 NBQB 324 9 months touching female while she was asleep
R. v. T.(D.) 2011 ONCJ 545 18 months digital penetration; touching; victim was disabled by C.P.
R. v. McDonald 2011 ABCA 307 32 months attempted sexual assault; unlawful entry
R. v. Paulin 2011 ONSC 5027 2 years less CSO attempted oral and anal intercourse
R. v. Chrispen 2009 SKCA 63 9 month conditional 18 year old accused; fondled breasts of victim; no record
R. v. Goulet 2008 MBPC 6 3 years grabbing a stranger in public, attempted to knock her out and sexually assault her; stopped by samaritans
R. v. A. (B.) 2008 ONCA 556 3 1/2 years vulnerable victim; assault over 18 months
R. v. Dahouky 2008 CanLII 19498 (ON S.C.) 9 months jail & probation failed attempt to penetrate victim while asleep
R. v. Calnen 2008 NSCA 6 4 months conditional sexual touching of bottocks; accused impaired by alcohol at time
R. v. A.D.C. 2008 SKCA 108 30 months fondling of sleeping victim while in drunk tank
R. v. Jennings-Grimwood 2007 ONCJ 481 6 months jail & probation undress sleeping victim; ejaculated on her leg; no sexual intercourse
R v. Roberge 2007 ONCA 435 3 years disabled victim passed out; appeal of conditional sentence
R. v. Rusk 2007 ABCA 189 4 years fondling and attempted sexual assault of a spastic quadriplegic.
R. v. M. (D.) 2007 ONCA 690 1 year child under age of 10; sexual touching; no record
R. v. Cook 2007 ABPC 86 church minister sexually assaults two persons (age 13 and 20), not position of trust
R. v. Durnford 2006 CanLII 34694 (NL P.C.) 9 months confined, fondled and undressed victim
R. v. Wark [2006] O.J. No. 2202 (C.J.) 6 months age 25; no record; digital penetration
R. v. Iron 2005 SKCA 84 20 months imprisonment victim passes out on bed during a party; offender digitally penetrates her and fondles her
R. v M.J.H. 2004 SKCA 171 2.5 years victim passed out; offender found humping unconscious victim; removed victim's clothes
R. v. D.W.G. 1999 ABCA 270 3.5 years minus remand The victim was confronted by drunk husband. He slapped her, stripped her naked, choked her with one of his forearms across her throat, and, while lying on top of her, attempted to have sexual intercourse. He was too drunk to complete the sex act.
R. v. Van de Wiele 1997 CanLII 9695 (SK C.A.) 2.5 years offender, age 25, had drinks with victim at his house; attempted fondling and attempted penetration; victim got away; bruising found on victims body.
R. v. Richardson (1992) 74 CCC 15 (Ont CA) 2 years infatuated with victim, broke into apartment, offender was intoxicated former lover
R. v. Cameron (1991) 75 Man. R. 290 (CA) 3 years picked up victim in car and drove to isolated area
R. v. D.A.W. 1991 CanLII 4533 (NSCA) 8 months victim woke up to accused performing oral sex on her.
R. v. Atkins 1988 CanLII 201 (NLCA) 2 years three incidences over several years; fondling of 9 year old child

Full Intercourse[edit]

Case Citation Prv Crt Sentence Summary
R v Moosomin 2012 SKQB 386 (CanLII) SK SC 33 months
R v DS 2012 SKQB 118 SK SC 30 months forced intercourse with ex-partner
R. v. Freake 2012 NLCA 10 NL CA 4 years force intercourse between partners
R v RK 2012 SKPC 17 SK PC 18 months historical sexual assault (1982), sexual intercourse with step daughter
R. v. P.N. 2011 NLTD 158 NL SC 3 years intercourse with teenage niece, threatened if she called police
R. v. N.K.P. 2011 ABCA 361 AB CA 9 years assaulted 7 family members; recorded some on video
R. v. Murphy 2011 NLCA 16 NL CA 3.5 years forced intercourse in front seat of vehicle, prior record for violence.
R. v. I.K.L., 2011 NLTD 7 NL SC 3 years numerous incidnets of intercourse with a minor
R. v. Dorah 2011 ONSC 6503 ON SC 2 years less a day forced intercourse in a dating couple
R. v. Berens 2011 MBQB 255 MB SC 2 years less a day intercourse while asleep; no remorse; gladue factors
R. v. A.N. 2010 ONCJ 288 ON PC 2 years less a day parties knew each other; moderate use of force; accused intoxicated
R. v. W.(R.R.) 2010 NLTD 135 NL SC 4 years broke into residence of 14 year old niece, full intercourse, threatened victim if she called police
R. v. Kasokeo 2009 SKCA 48 SK CA 27 months jail sleeping victim; appeal from 15 months jail; "probably" full intercourse
R. v. Zarpa 2009 NLTD 175 NL SC 3.5 years intercourse with sleeping woman
R. v. D.B.R. 2008 ONCJ 412 ON PC 10 years (JR) sexual assault x 3; sexual touching of minor x 2; confinement x 1. Occurred over several years
R. v. Woods 2008 SKCA 40 SK CA 22 months confinement, violence, digital penetration, intercourse, prolonged
R. v. Byer 2007 ONCA 694 ON CA 6 years administered drug and performed unprotected sex on 4 victims; occurred over 15 years
R. v. Law 2007 ABCA 203 AB CA 3 years victim passes out at a party; digital penetration, full penetration
R. v. Rich 2006 NLTD 84 NL SC 3 years forced intercourse
R. v. F. (E.W.) 2006 NLTD 91 NL SC 18 months intercourse with adult sister while she was asleep, alcohol involved.
R. v. R.H. 2003 NLCA _, [2003] N.J. No. 336 (C.A.) NL CA 6 months non-consentual sexual intercourse with spouse.
R. v. Kinde 2002 BCCA 233 BC CA 7 years forced sexual intercourse with victim on 4 occasions; bodily harm
R. v. S. (J.S.) 2001 MBCA 144 MB CA 30 months sleeping victim
R. v. C. (S.F.) 2000 NLTD _, 192 Nfld. & P.E.I.R. 179 NL SC 2.5 years offender broke into residence, grabbed complainant, threatened her, full intercourse
R. v. J.R. 1997 CanLII 14665 NL CA 3 years sexual intercourse with daughter; causing pregnancy
R. v. Sandercock 1985 CanLII 104 (AB C.A.) AB CA 4.5 years drive victim to secluded spot and accosted her

Sexual Assault Causing Bodily Harm[edit]

Case Citation Prv Crt Sentence Summary
R. v. Nelson 2012 ONSC 4248 ON SC 5 years
R. v. Welch 1995 CanLII 282 (ON CA) ON CA 33 months bruising on body

Aggravated Sexual Assault[edit]

Case Citation Prv Crt Sentence Summary
R. v. Thomas 2012 ONSC 1201 ON SC 2 years less a day agg sexual assault by intercourse with HIV
R. v. A.T.R. 2011 BCPC 283 BC PC 2 years joint rec.; HIV positive accused; not contracted by victims
R. v. Griffin [1998] O.J. No. 5763 ON life guilty plea -- 20+ years of violent offences -- high risk to reoffend

Sexual Interference and Sexual Assault on persons under 16[edit]

Touching and Other Act[edit]

Case Citation Prv Crt Sentence Summary
R. v. McLean 2013 ONCJ 23 (CanLII) ON PC 4 years Offender charged with break and enter and sexual interference.
R. v. S.C. 2012 CanLII 78017 (NL SCTD) NL SC 30 months Grandfather convicted of historical sexual assault over 10 years of granddaughter while she was between 5 and 14 years old. Offender touched victim in a sexual manner 6 times. Convicted of sexual assault (30mo), interference (9mo), and invitation (18mo).
R v JR 2012 SKPC 167 (CanLII) SK PC 14 months father touches 14 year old daughter in vaginal area, no digital penetration
R v WAC 2012 SKQB 415 (CanLII) SK SC 16 months offender lives in house with family including 7 year-old victim, he grabs her and touches her vagina under her clothes--long prior record of breaches and violence--difficult time on remand
R. v. Biss 2012 ONCJ 604 (CanLII) ON PC 14 months high school teacher sexual assault of female student aged 16 -- "fondling, mutual oral sex and masturbation...attempted sexual intercourse several times...penetrated the victim’s vagina with his fingers."
R. v. G.B. 2012 ABPC 214 (CanLII) AB PC 2 years less a day over seven years touched and performed fellatio on child aged 5 to 12.
R. v. Butt 2012 ONSC 4326 (CanLII) ON SC 6 to 12 months lured a 12 year old boy into apartment performed fellatio while he was HIV positive
R v Therrien 2012 SKPC 121 SK PC 18 months historical sexual assault, touching and digital penetration of two children in 1980s.
R. v. T.E.M. 2012 CanLII 43821 (NL SCTD) NL SC 3 years sexual interference of 11 year old girl
R. v. Archibald 2012 ABCA 202 AB CA 12 months touching of two boys aged 14--historical sexual assault--CSO overturned
R. v. MacIsaac 2012 CanLII 29422 (NL SCTD) NL SC 12 months x 2 victims touching of genitals and buttocks of two children over a period of time. also convicted of uttering threats to the victims (3 months each)--global sentence of 27 months
R. v. C.H. 2012 ONSC 3352 ON SC 3 years father touching daughter, forced oral sex
R. v. J.R.A. 2012 MBCA 48 MB CA 5 years father has 4 year old child give oral sex over 3.5 years
R. v. A.S. 2012 CanLII 25903 (NL SCTD) NL SC 12 months grandfather touched two adolescent children above and under their clothes--health problems
R v HDB 2012 ABQB 234 AB QB 5 years offender was 37 year old labourer--victim assaulted 7 year old step daughter multiple times, including oral sex and touching
R. v. Palacios 2012 ONCJ 195 ON PC 2 years less a day historical sexual assault
R. v. L.M.L. 2012 ABPC 84 AB PC 12 months (JR) sexual interference
R. v. S.A.F. 2012 ABPC 60 AB PC 48 months grandfather sexually assault grand daughter, oral sex, two incidents, found to be in loco parentis
R. v. C.W. 2012 CanLII 10660 (NL SCTD) NL SC 6 months 90 year old offender touched child in vaginal area over clothes
R. v. Vuradin 2012 ABCA 55 AB CA 27 months digital penetration
R. v. Hope 2012 CanLII 2673 (NL SCTD) NL SC 30 days & 12 months two victims, first was 11 years old and was asked for sex, the second was 14 and offender attempted to have intercourse
R. v. B.L. 2011 ABCA 375 AB CA 3 years oral sex; sexual touching of a child age 8 to 9 by uncle over age 70.
R. v. T.E.H. 2011 NSCA 117 NS CA 18 months 2 incidents of inference of 15 boy; oral sex; no prior record
R. v. W.R.G. 2011 BCPC 330 BC PC 12 months father putting hands down 14 year old daughters pants on 3 occasions
R. v. P.A. 2011 NLTD 157 NL SC 18 months 7 incidents of interference on child aged 12 to 13; brother’s step-daughter; offender aged 39 to 41; touching the victim’s breasts, vagina and putting the victim’s hand on offender’s penis
R. v. R. (G.W.) 2011 MBCA 62 MB CA 4 years prior related record; touching of 9 year old son
R. v. Johnson 2010 ABCA 287 AB CA 21 months put hands down pants of 14 year old
R. v. .P.S. 2010 ABCA 313 AB CA 3 months touched genital area twice of 8 year old girl
R. v. W.H. 2010 NLTD 62 NL SC 5 month CSO offender touched genitals of 14 year old girl outside of underwear but under dress and placed hands on breasts outside of clothes twice before--victim tried to push offender away twice--offender was 62 years old uncle of victim, no record, good employment history--convicted at trial
R v. J.B.C. 2010 NSSC 28 NS SC 6 years over 4 years multiple assaults on 9 year old. Digital penetration, fondling, just short of penetration
R. v. H.(W.) 2010 NLTD 62 NL SC 5 months conditional 3 incidents of sexual touching of a minor over 16.
R. v. Pretty 2010 CanLII 8323 (NLPC) NL PC 6 months while in a position of authority, he slapped the victim on the rear end, put his arms around the complainant, touched her breast, tugged on the neckline of her sweater, and asked if he could see her breasts.
R. v. Innerebner 2010 ABQB 188 AB SC 7 years 6+ victims
R. v. C.E.D. 2010 NLTD(G) 192 NL SC 5 months offender age 60, kissed, touched 15 year old female on buttocks outside of clothing, and breast inside shirt. no record. good employment history.
R. v. Manjra 2009 ONCA 485 ON CA 17 months offender licked privates of 7 year old girl
R. v. A.W.S 2009 ABPC 225 AB PC 3 years global 3 victims
R. v. D.A.P. 2009 ABCA 72 AB CA 15 months jail and probation sexual touching of grand-daughter aged 7 over 3 years; over low sentence
R. v. C.E.D. 2009 CanLII 65768 (NLPC) NL PC 10 months with 3 years probation sexual advances on 16 year old include kissing and fondling of breasts
R. v. Oldford 2009 NLTD 124 NL PC 5 months offender sat on couch with 13 year old girl, touched her legs, pulled her shirt up, kissed her belly, opened his fly, exposed his penis and pulled her pants off--offender was age 34
R. v. S.C. 2009 SKQB 272 SK SC 9 months convicted of multiple touching of child under 14. Touching over clothes. Was in a stepfather role.
R. v. Olford [2009] N.J. No. 214 (S.C.) NL SC touching child's legs, pulled up shirt and kissed stomach, exposed penis and started pulling pants off.
R. v. H.C. 2009 ABPC 73 AB PC 3 years 3 year old victim; kissing her neck, sucking and rubbing her breasts, rubbing up against her buttocks with an erect penis over her clothing, touching and rubbing her vagina over and under her clothing and digitally penetrating her vagina.
R. v. Lonegren 2009 BCSC 1678 BC SC
R. v. M.F.S. 2008 ABCA 157 AB CA 3 years before remand prior record; 30 minute long assault of child of age 3.
R. v. Bird 2008 SKCA 65 SK CA 30 months imprisonment fondling of babysitter; victim under threat; 14 year old victim
R. v. McCombie 2008 NBQB 353 NB SC 4 months offender pled guilty to touching 14 year old child’s breast under her shirt
R. v. S.P.C. 2008 ABCA 280 AB CA 18 months sexual touching of 7 year old
R. v. Maha 2008 ABPC 22 AB PC 1 year 9 year old made to masturbate offender to ejaculation
R. v. B.R. [2007] N.J. No. 111 NL SC 6 months offender had touched the stomach, breast and vagina of his common law spouse’s thirteen year old granddaughter
R. v. Skwarchuk 2007 ABCA 195 AB CA 27 months 4 incidents of non-consentual fellatio with girl aged 13.
R. v. Bachewich 2007 ABCA 199 AB CA 12 months 50 year old rubbing vaginal area of sleeping 9 year old for several minutes
R. v. B.R. 2007 CanLII 10890 (NLPC) NL PC 5 months and fifteen days incarceration
R. v. Van Den Boogaard 2006 ABCA 183 AB CA 6 months jail 58 year old offender was babysitting 13 and 11 year olds; girls were tied to a bed while naked; fondled one of them.
Bossé v. R. 2005 NBCA 72 NB CA 13 months + probation 9 year old child performs fellatio and masturbates 19 year old offender
R. v. K.L. 2004 BCSC 797 BC SC 18 month CSO sexual touching of grand-daughter
R. v. J.G.C. 2004 NLSCTD 69 NL SC 9 months fondled buttocks through clothing of two boys (13 and 14 years old), also pressed his penis against boy’s back and simulated anal sex
R. v. L.M.B. 2004 NLSCTD 151 NL SC 10 months sexual assault on 6 year old grand-daughter, fondled girl’s vaginal area under her clothes--offender was 48 years old with prior record including two sex assaults
R. v. Kemper 2004 ABCA 348 AB CA 2 years touching 30 to 50 times over 3 years
R. v. D.(D.T.) 2003 ABQB 57 AB SC 90 day intermittent touching vaginal area under clothing
R. v. F. (J.P.) 2002 BCSC 756 BC SC 13 mo CSO touching private parts of 5 year old daughter
R. v. C. (R.) 2002 CanLII 14844 (NL P.C.) NL PC 4 months teacher touches breast of 14 year old student
R. v. C.J.C. 2002 NSCA 45 NS CA 21 months progressive touching, including oral sex, of best friend's 13 year old daughter
R. v. W.C.C. 2001 N.J. No. 229 (P.C.) NL PC 6 months sexual assault of six-year-old niece. Touching child on bum with the palm of his hand. He stated that he lowered her outside pants by an inch.
R. v. A.J.S. 1998, 167 Nfld. & P.E.I.R. 182 (N.L.C.A.) NL CA 3 months CSO offender was convicted of sexually assaulting a young girl by placing his hand down her pants while sitting next to her on a plane.
R. v. Stuckless 1998 CanLII 7143 (ON CA) ON CA 5 years offender pled to 24 counts of sexual assault on boys aged 10 to 15 years old over a period of 20 years.
R. v. E.C.S. 1997, 148 Nfld. & P.E.I.R. 347 (N.F.S.C.) NL SC 60 days CSO 67 year old accused touched the breasts of a twelve year old girl.
R. v. Yazelle 1994 CanLII 3860 (SKCA) SK CA 4 years undress and fondle genitals of child; no penetration
R. v. Chipman 1993 106 Nfld. & P.E.I.R. 74 (N.L.S.C.) NL SC 60 days 63 year old offender embraced a 14 year old girl and touched her breast.
R. v. Bennett 1993 CanLII 2120 (BCCA) BC CA 12 months imprisonment touching breast and kissing 13 year old
R. v. B.C. 1992 N.J. No. 358 ( S.C.) NL SC 90 days accused fondled the breasts and vagina of his eleven year old niece

Intercourse[edit]

Case Citation Prv. Crt. Sentence Summary
R. v. KDH 2012 ABQB 471 (CanLII) AB SC 5 to 7 years offender also sentenced for a variety of sex offences against children (global 18 years). Offender had sexual relations with his own children and step-children over several years.
R v KM 2012 SKCA 95 (CanLII) SK CA 3 years intercourse with three boys under age 16
R. v. Patey 2012 CanLII 51735 (NL SCTD) NL SC 3.5 years offender was aged 29 to 30 when he had sexual intercourse and oral sex with two children aged 14 and 15. There were multiple offences--victims factually consented to all incidents except for one incident of anal sex
R. v. Bjornson 2012 ABCA 230 (CanLII) AB CA 17 months offender was 22 years of age and had intercourse and other sex acts with a 15 year old niece.
R. v. D.M. 2012 ONCA 520 ON CA 7 years sexual assault of 15 year old over 3 years--offender in a position of trust
R. v. P.K. 2012 MBCA 69 MB CA 36 months offender sexually assaulted two sisters over several years
R. v. King 2012 ABQB 273 AB SC 3 years offender had a relationship with a 15 year old over several years. They would have intercourse several times a week.
R v MJ 2012 SKQB 168 SK SC 3.5 years sexual intercourse with 14 year old while they slept, also previous incident of interference (touching under clothes) for which he got 1 year
R. v. Merkuratsuk 2012 CanLII 2508 (NL SCTD) NL SC 45 days female sexual asaulted 14 year old boy; intercourse for about 20 seconds
R. v. J.M.W. 2012 NSCA 9 NS CA 2 years sexual assault on 14 year old stepdaughter; multiple assuaults; full intercourse
R. v. C.L.J. 2011 ABCA 321 AB CA 7 years sexual assault causing bodily harm; choking; victim 6 years old, accused was uncle
R v JC 2011 MBPC 71 MB PC 4 - 9 years victim 6-13 years old; sexual intercourse, violence over many years; pregnancy
R. v. Woodward 2011 ONCA 610 ON CA 6.5 years victim age 12; luring over internet
R. v. Revet 2010 SKCA 71 SK CA 18 months no record; victim age 14
R. v. Leigh 2010 ONCJ 118 ON PC 2 years less a day two counts sexual assault, one anal intercourse, one fellatio. Victims were 11 and 14 years old. Crown recommended < 2 years.
R. v. A.G.A. 2010 ABCA 61 AB CA 3 years multiple acts of the offender's touching of the complainant’s penis; the offender's touching the victim’s penis; and one act of anal penetration.
R. v. R. J. B. 2007 ABPC 61 AB PC 45 days sexual intercourse x 2 with child of 13 years
R. v. Pritchard 2005 ABCA 240 AB CA 2 years less a day CSO 19 year old meets 13 year old online; had unprotected sexual intercourse; plea to s.271
R. v. C. 2005 NSSC 3 NS SC 3 years conviction at trial offender placed his penis in child's vaginal area and anal area, caused significant pain.
R. v. R.S. 2005 CanLII 45184 (ON CA) ON CA 9 years numerous sexual assault upon his children
Bossé v. R. 2005 NBCA 72 NB CA 13 months and probation 19 year old offender twice had a child of 9 years perform fellatio on him and masturbate him until he ejaculated
R. v. D. (D.) 2002 CanLII 44915 (ON CA) ON CA 9 years 1 month

Over 7 years, the offender befriended 4 boys between ages 5 and 8 in order to engage in sexual activity including masturbation, oral sex, attempted and actual anal intercourse.

R. v. B.(G.) (1999), 181 Nfld. & P.E.I.R. 1 (N.L.S.C.) NL SC 9 months sexually assaulted a 13 year old girl who was the daughter of his neighbour. The offence involved digital penetration.
R. v. W.B.S. 1992) 127 A.R. 65 1992 CanLII 2761 AB CA 5.5 years "serious sexual assault" on child

Invitation to Sexual Touching[edit]

Case Citation Prv Crt Sentence Summary
R. v. Renouf 2012 CanLII 25628 (NL PC) NL PC 14 days
R. v. E.J.K. [2002] N.J. No. 388 (S.C.) NL SC 6 months also convicted of sexual assault and interference--offender was naked and put child's hand on his penis and moved it up and down
R. v. T.L.M. [2010] N.J. No. 99 (S.C.) NL SC 1 year also convicted of sexual assault and interference--a number of incidents where the offender invited the victim to touch him
R. v. L.H. 2011 NLCA 4 NL CA 1 year on two or three occasions offender asked victim "to rub lotion on his penis"