QUICK TAKEAWAY
Sexual Offences Against Children: The Criminal Code contains various charges that deal with sexual offences against children. Some are indictable offences, meaning you will be imprisoned if convicted, while others can be treated as summary convictions, punishable with less harsh penalties. With all these crimes, those charged with a sexual offence cannot argue that a youth gave consent for what happened.
Table of Contents:
Sexual Offences Against Children
There are numerous charges in the Criminal Code that involve children. Here are the most common.
Sexual Interference
Section 151 of the Code makes it an offence to touch, directly or indirectly, any part of the body of a person under the age of 16. If treated as an indictable offenceIndictable offences are more-serious criminal offences the maximum penalty is 14 years in prison, with the minimum punishment one year in jail. If treated as a summary convictionUsed for lesser offences the maximum imprisonment is two years less a day, with a minimum of 90 days of detention.
Invitation to Sexual Touching
Section 152 of the Code makes it an offence to invite or ask a person under the age of 16 to touch, directly or indirectly, a part of your body. If treated as an indictable offence the maximum penalty is 14 years in prison, with the minimum punishment one year in jail.
Sexual Exploitation
Section 153 (1) of the Code makes it an offence for a person in a position of trust or authority of a young person12 years old or older, but less than 18 to touch them, directly or indirectly, or to invite them to touch someone else. Section 153 (1.2) states that a judge may infer that a person is in an exploitative relationship with a young person depending on the age of the young person, the age difference between two, the evolution of the relationship or the degree of control or influence by the older person over the young person. If treated as an indictable offence the maximum penalty is 14 years and a minimum of one year in jail. If treated as a summary conviction the maximum penalty is imprisonment for two years less a day and to a minimum punishment is 90 days in jail.
Trafficking of a Person Under the Age of 18
Section 279.011 (1) makes it a crime to recruit, transport, conceal or harbour a person under 18, or to exercise control over their movements for the purpose of exploiting them or facilitating their exploitation. This charge is always treated as an indictable offence. There is a maximum penalty life in prison if the offence included kidnapping, aggravated assault, aggravated sexual assault, or if the victim died during the offence, with a minimum penalty of six years in prison for the same factors. In all other cases, there is a maximum penalty of 14 years and a minimum of five years. The Code notes that consentVoluntary agreement to engage in an sexual act by the victim cannot be given with this crime.
Benefitting From the Trafficking of a Youth
Section 279.02 (1) makes it a crime to benefit financially or in any other way from the traffickingInfluencing the movements of a person in order to exploit them of someone under 18, either directly or indirectly. This charge is treated as an indictable offence with a maximum penalty of 14 years in prison and a minimum penalty of two years in prison.
Withholding or Destroying a Youth's Documents
Section 279.03 (2) makes it a crime to conceal, withhold or destroy any travel document belonging to a person under 18 who is being trafficked. The Code states it does not matter if the document is of Canadian origin. This charge is an indictable offence that carries a maximum punishment of 10 years in prison and a minimum punishment of imprisonment of one year in jail.
Obtaining Sexual Services From a Person Under 18 Years
Section 286.1 (2) of the Code makes it a crime to obtain sexual services from someone under 18 years of age, or even to communicate with them about obtaining these services. This charge is an indictable offence that carries a maximum punishment of 10 years in prison to a minimum punishment of six months for the first offence, with one year added onto the minimum for subsequent offences.
Material Benefit from Sexual Services
Section 286.2 (2) of the Code makes it an offence to materially or financially benefit from the sexual services of someone under the age of 18. If the charge is treated as an indictable offence you could face a maximum of 10 years in prison, or a lesser penalty if the charge is treated as a summary conviction. The Code adds that if you live with or are "habitually in the company" of the underage person providing sexual services, that will be considered as receiving financial or other material benefit from those services.
Procuring
Section 286.3 (2) of the Code makes it an offence to procure a person to offer or provide sexual services for consideration, to recruit, conceal or harbour a youth who offers sexual services for money, or to exercise control or influence over that person. This charge is an indictable offence with a maximum punishment of 14 years and a minimum punishment of five years imprisonment.
What is Needed to Convict
The Crown must prove beyond a reasonable doubtThe standard that must be exceeded to find someone guilty that you committed the offence, and the child is not fabricating the testimony against you. If there is forensic evidence linking you to the crime the validity of that evidence can also be challenged. Your lawyer may be able to show that your rights under the Canadian Charter of Rights and Freedoms were breached during the police investigation. In all cases, a successful defence is built on the facts of the case.
Treated as an Indictable Offence or Summary Conviction
The Criminal Code allows the Crown to proceed in two ways. Offences for less-serious crimes can be dealt with summarily. More serious offences such as trafficking a youth for sex are dealt with as indictable offences. Offences that can be dealt with either way are called a hybrid offenceAn offence prosecuted either as a summary conviction or as an indictable offence.
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Glossary of Legal Terms
Consent
The voluntary agreement of the complainant to engage in the sexual activity in question.
Hybrid offence
Hybrid offences fall between a summary and an indictable offence. The Crown prosecutor chooses whether to treat the offence as a summary or indictable offence.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Reasonable doubt
The Supreme Court of Canada has said that reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities” and “that something less than absolute certainty is required, and that something more than probable guilt is required."
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
Trafficking
The recruitment, transportation, harbouring and influence over the movements of a person in order to exploit them, typically through sexual exploitation or forced labour. It is often described as a modern form of slavery.
Young person
Those 12 years old or older, but less than 18.
