SEXUAL AND MORALITY OFFENCES
Sexual Assault
The offence of Sexual Assault and its categories is set out in Sections 271 to 273.2 of the Criminal Code of Canada. LINK There are three levels of this crime: Sexual Assault (simpliciter) (s. 271), Sexual Assault with a weapon, causing bodily harm or accompanied by threats to a third party (s. 272), and Aggravated sexual assault (wounding etc.) (s. 273).
Other sexual offences, many directed to the protection of minors, are detailed in Sections 150.1 to 173 of the Criminal Code. LINK
A person under the age of 16 cannot consent to sexual activity (s. 150.1(1)), with the following exceptions:
o If the complainant is 12 or 13 years of age, consent is a defence if the accused is less that 2 years older than the complainant (s. 150.1 (2))
o If the complainant is 14 or 15 years of age, consent is a defence if the accused is less than 5 years older than the complainant (s. 150.1 (2.1)
Contact sexual crimes specifically against persons under 16 years of age include:
o Sexual interference (s. 151)
o Invitation to sexual touching (s. 152)
o Sexual exploitation (s. 153),
Other offences related to sexual morality are:
o Incest (s. 155 (1))
o Sexual exploitation of person with disability (s. 153.1)
o Bestiality (s. 160)
o Voyeurism (s. 162)
o Publication/distribution of intimate image without consent (s. 162.1)
o Distribution/Sale of Obscene materials (s. 163)
o Possession, Accessing, Distributing, Making Child pornography (s. 163.1)
o Presenting immoral theatrical performance (s. 167)
o Parent or Guardian procuring person under 18 years for sexual activity (s. 170)
o Owner, occupier, or manager of premises permitting prohibited sexual activity of person under 18 years (s. 171)
o Making sexually explicit material available to person under 18 years (s. 171.1)
o Corrupting/endangering the morals of person under 18 years (s. 172)
o Luring a child (person under 14, 16 or 18 years) by communicating by means of telecommunication (s. 172.1)
o Arranging or agreeing, by means of telecommunication, to commit a sexual offence against a child (person under 14, 16, or 18 years) (s. 172.2)
o Committing indecent act in presence of one or more persons (s. 173 (1))
o Exposing genital organs to person under the age of 16 years (s. 173 (2))
o Public nudity (s. 174)
A conviction for a sexual offence has consequences beyond those associated with other criminal offences. In addition to the imposition of a criminal record, persons convicted of sexual crimes will likely be required to register with the federal (SOIRA) and provincial sex offender registries, often for life. The right to a pardon (now called a records suspension) is also eliminated for many sexual crimes.
Some justice system stakeholders, including Supreme Court justices, have expressed concern that, in sexual assault prosecutions, the legislative and judicial undermining of traditional trial safeguards for accused persons will lead to wrongful convictions.
The defence of Sexual Assault charges is complex. Legislation accumulated over the past two decades, and judicial interpretations of legislation intended to encourage the reporting of sexual crimes and increase the conviction rate in sex offence prosecutions, has resulted in convoluted evidentiary procedures related to consent, admissibility of the complainant’s prior sexual activity (even between the complainant and the accused), access to records, and admissibility of communications between the complainant and the accused.
David G. Bayliss and Luka Rados are experienced in navigating the complex rules and procedures specific to sex offence prosecutions. See Successful Cases.
