Sexual Offences


SEXUAL OFFENCES GENERALLY

Sex Offender Registry
Few offences carry the social stigma of sexual offences such as sexual assault, sexual interference and invitation to sexual touching.  Add to that the high probability of a jail term upon conviction and the growing use of sex offender registries and a conviction for an offence of this nature is virtually guaranteed to brand you forever and fundamentally change your life – and not for the better.

Successfully defending sexual cases is the most complex challenge in the criminal law.  That is because the practice requires familiarity and creativity in negotiating the many special rules that govern prosecutions for sexual offences that do not apply to other types of charges. Examples of these are described below, but in summary, include:

  • that video recorded statements of child and mentally disabled complainants can be admissible in evidence even if the complainant does not remember the events
  • that the defence is not permitted to cross-examine a complainant about any “other sexual activity” unless we first get special leave from the court.  This process involves giving detailed evidence of the areas we seek to cross-examine in to not only the prosecutor and the court, but to the complainants themselves.  Moreover, complainants are entitled to legal representation (at the state’s expense) on such applications.
  • that the defence faces significant obstacles in obtaining third party records such as counselling or medical records to assist in the defence in defending criminal charges.  Again, complainants are entitled to detailed notice of any such applications and are entitled to state-funded legal representation on such applications.
  • that a complainant’s consent to sexual activity is determined by reference to his or her subjective state of mind and not by his or her conduct
  • that once a complainant is found not to have consented to sexual activity that an accused bears the onus of establishing that he or she honestly believed that the complainant consented to the activity
  • that an accused is barred from arguing that he or she honestly believed that a complainant consented to sexual activity if his belief in that consent was formed while he or she was intoxicated

As a result, a major component of defending these cases is dealing with these obstacles and avoiding these pitfalls. Doing so is often a complex and time-consuming exercise. Despite the fact that technically, you are presumed to be innocent, these special rules, in practice, erodes and in some cases reverses that presumption. That is why I view it as essential to pursue any advantage I can for my clients, no matter how incremental, in the interests of evening the playing field as much as possible. This is accomplished through careful analysis, creative problem solving and attention to detail.

The Importance of Immediate Legal Advice

For the above reasons, if you are even being investigated for this kind of offence, it is absolutely essential that you seek immediate legal advice before you respond to any inquiry from the police or any third party such as an employer.  This is because confessions or admissions against interest only serve to build the case against you.  Exculpatory statements are generally not admissible in your defence.

There are two ways these sorts of investigations usually progress.  The first way is that you will receive a call from the police asking you to come in to answer some questions.   The red flags should go up immediately.  If you attend that meeting without first seeking legal advice, you are running a serious risk of incriminating yourself and making a weak case into a strong one, even if you feel you have nothing to hide and are innocent.

The second way is that the police immediately detain or arrest you and take you into custody.  If you are detained or arrested, particularly on an allegation of sexual offence involving a child, the police will be extremely aggressive in their efforts to extract a confession from you.  The police are specially trained in techniques to get you to start talking.  The courts have tolerated a high degree of coercion from the police and supported their entitlement to interview suspects to the point of exhaustion despite an expressed and repeated desire not to speak to them and to exercise your right to remain silent.

Many people think that by failing to provide a statement to the police, they appear guilty.  This is wrong.  The fact that you chose to exercise your constitutional right to remain silent cannot be used as evidence against you.  Judges and prosecutors all understand that.  While they won’t say this to you, even the police know that this is what any lawyer will have told you to do, regardless of whether you are innocent or not.

This is not to say it is never a good idea to provide a statement to the police.  There are rare cases in which I have saved my client months and years of anguish and many thousands of dollars by making him available, in my presence, for questioning.  I do this, however, only after determining that the police have not yet made a decision to charge and that your answers to their questions might realistically impact that decision.  Sometimes that is a calculated risk worth taking. It is, however, not a decision to be taken hastily and certainly not on the night you are arrested.

If you are arrested or detained, a reasonable answer to police questioning is that you may be prepared to provide a statement but that you want to have a lawyer present.  The police will tell you that in Canada, you do not have a right to have a lawyer present when they interview you.  That is correct ­– you don’t.  You do, however, have every right to put conditions on whether you will or will not answer questions or provide a statement.  If the police won’t meet your conditions (which they invariably won’t), then you should simply sit there mute, exercising your constitutional right to remain silent until you have a chance to retain counsel who can then intervene with the police on your behalf.  You may find this article, from our Issues and Answers page, to be useful reading.

The bottom line:  If you are under investigation for a sexual offence, don’t just talk to a lawyer, retain a lawyer to look out for your long term interests before you consider answering a single police question.


SEXUAL ASSAULT

What is a “Sexual Assault”?

Sexual assault is a form of assault, an assault being the intentional physical touching of another person to which they do not consent.  Threatening actions that do not result in physical contact can also constitute an assault.

A sexual assault is an assault committed in circumstances of a sexual nature that violate the sexual integrity of the complainant.

In determining whether an assault was committed in circumstances of sexual nature, a court will consider which part of the complainant’s body was touched, how it was touched, the motive and intent of the person doing the touching, the kinds of words or gestures, if any, that accompanied the assault and the type of context or situation in which it occurred.

This means that you can be convicted of sexual assault even if your purpose in touching the complainant was not sexual.

KEY ISSUES IN SEXUAL ASSAULT CASES

 Key Issue:  Was There Consent?

In a sexual context, the Criminal Code defines “consent” as “the voluntary agreement of the complainant to engage in the sexual activity in question”.  There will be no consent if:

  • the agreement is expressed by the words or conduct of a person other than the complainant
  • the complainant is incapable (due, for example, to the consumption of alcohol or drugs, age or mental disability) of consenting to the activity.
  • you induce the complainant to engage in the activity by abusing a position of trust, power or authority
  • the complainant expresses, by words or conduct, a lack of agreement to engage in the activity
  • the complainant, having initially consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity

In cases of non-sexual “assault”, an accused can rely on there being an implied consent to his or her actions.  There are many social contexts where we can be taken to agree to certain types of non-violent contact.  A man hugs his wife, a friend claps another on the shoulder would be obvious examples.  Even if there was no implied consent, this type of non-threatening, non-violent contact is so minor that the doctrine of de minimus non curat lex (“the law does not concern itself with trivialities”) would apply.

By contrast, in cases of sexual touching or “assault”, the law does not recognize such a thing as implied consent.  Whether or not consent existed is entirely subjective.  In other words, if a court accepts the complainant’s evidence that he or she did not consent to the sexual activity, the element of lack of consent is established.  You can, however, still assert that even if the complainant did not consent, you had an honestly held belief that the complainant was consenting.  This evidence, if accepted, does not establish that the complainant consented; it does however, raise a reasonable doubt that you had the intent or “guilty mind” necessary to support a a finding of guilt.  Accordingly, subject to a number of exceptions, an honest but mistaken belief in consent is the basis for an acquittal on a charge of sexual assault.

Key Issue:  Was there an Honest But Mistaken Belief in Consent?

The cases in which you can assert an honest but mistaken belief in consent are limited by law.  An honest belief in consent is not a defence where:

  • your belief in consent arose from self-induced intoxication – for example, you will not succeed by testifying that because you had been drinking, your judgment was impaired and you therefore mistakenly believed that the complainant was consenting
  •  you were “reckless” or “willfully blind” to the complainant’s lack of consent;
  •  you cannot point to any words or actions of the complainant that communicated consent to support your belief; or
  •  you did not take reasonable steps in the circumstances known to you to ascertain that the complainant was consenting.

SEXUAL OFFENCES INVOLVING CHILDREN

The most common type of sexual offence is sexual assault.  The most common defences to sexual assault are denial (that it occurred) or that the complainant consented.  However, since the “age of consent” in Canada is 16 years of age, a person under 16 cannot consent to sexual activity with an adult.  Moreover, a person over 16 years of age but under 18 years of age cannot consent to sexual activity with an adult who is in a position of trust, such as a step-parent, sports coach, teacher or babysitter.  Also, consent is no defence if the relationship between the adult and person between 16 and 18 years of age is “exploitative”.

There are several specifically delineated sexual offences relating the children such as Sexual Interference, Invitation to Sexual Touching, Sexual Exploitation and the recently created Luring a Child.  While the circumstances underlying these offences, if proven, will also include some type of sexual assault, these specific offences prove useful to Crown prosecutors as they carry minimum mandatory jail terms, the effect of which is to eliminate the availability of a conditional sentence (sentence served in the community) for offences of this nature.

Sexual Interference

Sexual Interference is a specific type of sexual assault that applies where you touch a complainant who is under the age of 16 years for a sexual purpose with any part of your body or with an object.

Depending on the offence dates and the manner in which the Crown proceeds (summarily or by indictment),  there may be minimum mandatory jail terms that the court must impose following a conviction for sexual interference.

Although every case of sexual interference would also constitute a sexual assault, every sexual assault of a person under 16 is not necessarily sexual interference.  That is because in the case of sexual interference, it must be proven that in touching the complainant, you were doing so with a sexual purpose in mind.

Common defences to invitation to sexual touching include denying the invitation occurred at all, asserting that the invitation to touch occurred but was not for a sexual purpose, and Mistaken Belief in Age.

Common defences to sexual interference include denying the act occurred, asserting that the touching was accidental, asserting that the touching occurred but was not for a sexual purpose and, as stated, mistake as to the complainant’s age.

Invitation to Sexual Touching


Invitation to Sexual Touching makes it illegal, for a sexual purpose, to invite or counsel a person under the age of 16 – by action or words – to touch your body, their own body or the body of another person.

Unlike Sexual Interference, not every Invitation to Sexual Touching is also a Sexual Assault.  As with Sexual Interference, depending on the offence dates and the manner in which the Crown proceeds, minimum mandatory jail terms may be imposed in the event of conviction.

Common defences to invitation to sexual touching include denying the invitation occurred at all, asserting that the invitation to touch occurred but was not for a sexual purpose, and Mistaken Belief in Age.

Sexual Exploitation (of a Child Over 16 but Under 18)

While the age of consent in Canada is 16 years, consensual sexual contact – be it sexual touching or an invitation to sexual touching – may, in certain circumstances, constitute an offence if the complainant is a young person over 16 but under 18.  Those circumstances will exist if:

  • the accused is in a position of trust or authority toward the young person
  • the relationship is one where the young person is dependent upon the accused; or
  • the relationship is “exploitative”.   (Whether a relationship is “exploitative” will depend on a variety of factors, including the age difference between the accused and the young person, the evolution of the relationship and the degree of control or influence exercised by the accused over the young person.)

There are numerous lines of defence to a charge of sexual exploitation.  Apart from the issues of whether the alleged acts in fact occurred or if they did occur, whether they were for a sexual purpose, it will be necessary for the Crown prosecutor to prove that the relationship was one that falls within one of these listed categories.  Mistaken Belief in Age will also be a defence.

Child Luring


The offence of “Child luring” or “internet luring” criminalizes the communication with a child or a person that you believe to be a child by way of a computer system for certain purposes.  “Computer system” is broadly defined and includes not only communication via the internet but has been found by the courts to include text messaging as well.

Investigations are frequently conducted as “sting” operations where a police officer will pose as a child on line.  It is not a defence that the person being communicated with is not in fact a child; it is enough that it can be proven that you merely believed the undercover police officer to be a child.

Recent years have also seen the advent of “Creep Catchers”, a vigilante group that takes it upon themselves to locate and identify would-be perpetrators.  Creep Catchers operatives function differently from police.  The police, for example, will look for individuals who appear to be looking at forums where they might initiate a sexualized conversation with a person under 16.  Creep Catchers is far more solicitous, placing personal ads on Craigslist, for example, under headings such as “Strictly Platonic” with the result that people might be themselves “lured” toward offending behaviour when they might not otherwise be.   The police are generally disapproving of Creep Catchers in that they do not use methods that necessarily produce sufficient evidence to prove a case to the criminal standard of beyond a reasonable doubt.  They can also cause significant collateral damage through mistaken identification.   Getting outed by Creep Catchers can result in criminal charges but usually does not unless the case involves a public figure such as a police officer or other agent of the state.

While 16 is the “age of consent” in Canada, it is nonetheless illegal to communicate with a person under 18 or a person you believe to be under 18 by way of a computer system or text messaging for the purpose of:

  • The creation, distribution or possession of Child Pornography (Note: while 16 is the age of consent to sexual activity, asking a person under 18 to provide pornographic images of themselves is illegal since it would constitute “child pornography”)
  •  Incest; or
  •  Prostitution

If the person being communicated with is under 16 or believed by you to be under 16, it is also illegal to communicate with them by way of a computer system or text messaging for the additional purposes of “facilitating” (that is, “bringing about” or “making more probable”):

  • Bestiality
  • The exposure of one’s sexual organs; or
  • abducting a child or enticing a child to leave the care of his or her parents or guardians

Child Pornography Offences

It is illegal to possess, access, distribute or make child pornography.  The distribution or making of child pornography are more serious than merely possessing or accessing it.  Depending on the offence dates and the manner in which the Crown proceeds (summarily or by indictment), these offences, however, may carry minimum mandatory jail terms.

What is “Child Pornography”?

“Child Pornography” is broadly defined in s.163.1 of the Criminal Code and includes:

  • a visual representation showing a person who is under 18 or who is depicted to be under 18 engaged in explicit sexual activity
  • a visual representation of the sexual organs (which has been held by the courts to include bare breasts) or anal regions of a person under 18 which focuses on those regions for sexual purpose
  • written material, a visual representation or an audio recording that promotes sexual activity with a person under 18
  • written material or audio recordings whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under 18

Types of Child Pornography Investigations

Many child pornography investigations arise from international seizures of records from website operators that publish this material or from tips generated from law enforcement cyber tip lines.  Internet addresses are traced to internet service providers who will provide address and identification details to local police.  Child pornography is also commonly discovered when third parties access your computer or the computer of someone you have shared an image with.

In any case, once the matter is reported to the police, the police will seek a warrant to search for your residence or business premises.  All computers and disks that appear to be in your possession are then seized and the police determine whether there is any “child pornography” and if so, whether there is any evidence of uploading or distribution.

Key Issues in Child Pornography Cases


Key issues in child pornography cases include:

  • whether whether the impugned material falls within the definition of child pornography.  Where the imagery shows “explicit sexual activity”, it must be shown that the person or persons in the imagery is under 18 or is depicted to be under 18.  In the case of nude photographs that do not depict sexual activity, the Crown prosecutor must actually prove that the individuals in the photographs are under 18.  A real issue in this context may be whether what is shown in the imagery crosses the vague line between “sexual activity” and “explicit sexual activity”.
  • whether the Crown prosecutor can prove possession, distribution or making of the material.  Possession, for example, requires that  “knowledge, consent and control” over the child pornography be proven.  This can be an issue where numerous people appear to have access to a computer or area in which disks are stored
  • whether the seizure of the impugned material was lawful.  Were there lawfully obtained reasonable and probable grounds to issue the warrant in the first place and even if there were, was the search was executed reasonably?  If not, all of the evidence can be ruled inadmissible pursuant to the Charter of Rights and Freedoms

These lines of defence should be carefully examined before making any decision as to plea.

Cases Involving Teenaged Complainants

While the elements are same for an alleged sexual offence involving a teenager versus a pre-pubescent child, in cases involving teenaged complainants who are not obviously, either by virtue of their appearance, or by information known to you,  under the age of consent, a defence can be raised that you were not aware that they were in fact under age.  This defense can work in tandem with others, such as honest mistaken belief in consent.

Key Issue:  Mistaken Belief in Age

Mistake of age is a common defence to sexual offences involving teenage complainants.  However it is not sufficient to simply testify that you thought the complainant was old enough.  The Criminal Code requires that you go further and establish that you not only honestly believed the complainant to be of age, but you took “reasonable steps” to ascertain the age of the complainant.

If you are charged with possession, accessing or distributing child pornography, you do not bear the burden of proving that you took reasonable steps to determine the age of the individuals in the images.  The Crown prosecutor maintains the burden of proving that the individuals in the visual representations of explicit activity are or are depicted as being under 18.  In the case of nude photographs that do not depict sexual activity, the Crown prosecutor must actually prove that the individuals in the photographs are under 18.

Where you are charged with making child pornography, you do have to establish that you honestly believed the subjects of the images you created to be over 18 and you took all reasonable steps to ascertain this.

OTHER TYPES OF SEXUAL OFFENCES


Historic Sexual Offences

There is no “Statute of Limitations” in Canada that creates a sort of immunity for offences alleged to have occurred in the distant past.  There are strong policy initiatives supporting the prosecution of sexual offences that only come to light decades after they are alleged to have occurred.  If that occurs, the offences charged will be repealed offences that existed in law at the time.  For example, prior to 1983, there was no such offence as “Sexual Assault”.  Rather, charges from this era might include Rape, Attempted Rape, Indecent Assault, Gross Indecency or Buggery.

Historic sexual offences generally involve adults testifying to events they say occurred while they were children.  Unlike allegations of recent conduct, which may be accompanied by medical or other evidence capable of confirming or contradicting the allegations, proof of historic sexual offences often rest entirely upon the testimony of the complainant.  Because of the passage of time, adducing evidence from either you or people you may want to rely on as witnesses can present special challenges to your ability to make full answer and defence.  Prospective defence witnesses may have died or their memories of what were then minor details faded.  Imprecision as to time makes it even more difficult to “prove a negative” than it usually is.  Nonetheless, the courts have taken the view in the vast majority of cases that an accused can have a fair trial despite these issues.

For many years, sentences imposed for historic sexual offences tended to be more lenient than they would have been if those offences were committed more recently, or if the conviction occurred closer to the time of the offence.    The main reason for that is that such an offender has often been crime-free for many years and has been seen to have been self-rehabilitated.  That is still an important factor in many circumstances.  At the same time, more recent cases have demonstrated that where serious, ongoing child abuse has been found by the court to have occurred, the passage of time is unlikely to make a significant difference in terms of sentence.

Sexual Exploitation of an Adult Person with a Disability

It is not an offence, per se, to engage in consensual sexual activity with an adult person with a physical or mental disability as long as the person has the capacity to consent to the activity.  If the disabled person does not have the capacity to consent, or if that consent was given because of an abuse of trust, power or authority, then the accused may be guilty of sexual assault.

The offence of Sexual Exploitation of a Person with a Disability applies to the act of “counseling” or “inciting” the disabled person to touch the body of the accused or another person (including the complainant themselves) in circumstances where:

  • the accused is in a position of trust or authority toward the disabled person
  •  the relationship is one where the disabled person is dependent upon the accused; or

There are numerous lines of defence to a charge of sexual exploitation of a person with a disability.  Apart from the issues of whether the alleged acts in fact occurred or if they did occur, whether they were for a sexual purpose, whether the disabled person in fact consented to the consensual activity, it will be necessary for the Crown prosecutor to prove that the relationship was one that falls within one of these listed categories.  A lack of awareness by the accused of the disability of the complainant can be a defence, as can the defence of Honest But Mistaken Belief In Consent.

Voyeurism

It is an offence to observe or to visually record a person who is in circumstances that give rise to a reasonable expectation of privacy, if:

  • the person is nude, partially nude or engaged in explicit sexual activity
  • the person is not nude, partially nude or engaged in explicit sexual activity but the observation or recording is of a place where they might reasonably be expected to be
  • the observation or recording is for a sexual purpose regardless of the place it occurs or whether the person is nude, partially nude or engaged in explicit sexual activity

Voyeurism covers a wide range of conduct and the available defences will turn very much upon the facts of the case.  In the case of surreptitious recording, for example, a key issue might be whether you actually made (rather than simply possessed) the recording.  In cases of non-recorded observation, whether the observation was intentional or made for a sexual purpose may be in issue.

SENTENCING FOR SEXUAL OFFENCES

All sexual offences (with the exception of sexual offences involving weapons or causing bodily harm) are what are known as “hybrid” or “Crown option” offences.  This means that the prosecutor has the choice of proceeding either by Indictment or by Summary Conviction, which can be loosely equated with the more familiar American terms of “felony” and “misdemeanor”.

The range of sentencing that applies if you are convicted differs depending upon which avenue the Crown prosecutor elects to pursue.

Maximum and Minimum Jail Terms for Sexual Offences

Note: For sexual offences involving children (under 18 years of age) committed on or after July 17, 2015, if the sexual offences are committed against more than one child, and are the subject of separate counts, sentences must be served consecutively.   This means that any minimum sentences set out below would have to be added to the minimum sentence for any other offence to determine the actual minimum sentence of imprisonment in a given case.

Also, as you will see, many of these offences carry with them mandatory minimum sentences, many of which have been struck down by the courts.  The litigation in this area is evolving and even for offences where the minimum sentence has not yet been struck down, it may be because it has not yet been challenged in court.  Even if facing a conviction, there are other ways to avoid a mandatory minimum sentence such as entering pleas to alternative offences (that do not carry mandatory minimum sentences), amending the time period the offences are alleged to have happened (thus avoiding being caught by enactment of a mandatory minimum) or persuading the Crown to proceed summarily rather than indictably (or sometimes, oddly enough, vice-versa.)

Sexual Assault (Section 271)

 

By Indictment:

-Complainant 16 or older:

  • Maximum 10 years’ imprisonment
  • No minimum

-Complainant under 16:

  • Maximum 14 years’ imprisonment if offence occurred on or after July 17, 2015
  • Maximum 10 years’ imprisonment if offence occurred prior to July 17, 2015
  • No minimum (Minimum 1-year imprisonment for offences occurring after August 9, 2012 struck down as unconstitutional)

By Summary Conviction:

-Complainant 16 or older:

  • Maximum 18 months’ imprisonment if offence occurred on or after December 15, 1994
  • Maximum 6 months’ imprisonment if offence occurred prior to December 15, 1994
  • No minimum

-Complainant under 16:

  • Maximum 2 years less a day’s imprisonment if offence occurred on or after July 17, 2015
  • Maximum 18 months’ imprisonment if offence occurred between December 15, 1994 and July 16, 2015
  • Minimum 6 months’ imprisonment if offence occurred on or after July 17, 2015   (Some lower courts have held that the mandatory minimum does not apply in specific cases.)
  • Minimum 90 days’ imprisonment if offence occurred between August 9, 2012 and July 16, 2015
  • No minimum of offence occurred prior to August 9, 2012

Sexual Interference (Section 151)

By Indictment:

  • Maximum 14 years’ imprisonment if offence occurred on or after July 17, 2015
  • Maximum 10 years’ imprisonment if offence occurred prior to July 17, 2015
  • No minimum (Minimum 1-year imprisonment for offences occurring after August 9, 2012 and Minimum 45 days’ imprisonment for offences occurring between November 1, 2005 and August 8, 2012 struck down as unconstitutional.)
  • No legislated minimum if offence occurred prior to November 1, 2005

By Summary Conviction:

  • Maximum 2 years less a day’s imprisonment if offence occurred on or after July 17, 2015
  • Maximum 18 months’ imprisonment if offence occurred between November 1, 2005 and July 16, 2015
  • Maximum 6 months’ imprisonment if offence occurred prior to November 1, 2005
  • No Minimum if offence occurred on or after August 9, 2012 (Minimum 90 days’ imprisonment for offences occurring after August 9, 2012 struck down as unconstitutional.)
  • Minimum 14 days’ imprisonment if offence occurred between November 1, 2005 and August 8, 2012
  • No minimum if offence occurred prior to November 1, 2005

Invitation to Sexual Touching (Section 152)

By Indictment:

  • Maximum 14 years’ imprisonment if offence occurred on or after July 17, 2015
  • Maximum 10 years’ imprisonment if offence occurred prior to July 17, 2015
  • Minimum 1 year ‘s imprisonment if offence occurred on or after August 9, 2012
  • Minimum 45 days’ imprisonment if offence occurred between November 1, 2005 and August 8, 2012
  • No minimum if offence occurred prior to November 1, 2005

By Summary Conviction:

  • Maximum 2 years less a day’s imprisonment if offence occurred on or after July 17, 2015
  • Maximum 18 months’ imprisonment if offence occurred between November 1, 2005 and July 16, 2015
  • Maximum 18 months’ imprisonment if offence occurred after November 1, 2005
  • Maximum 6 months’ imprisonment if offence occurred prior to November 1, 2005
  • Minimum 90 days’ imprisonment if offence occurred on or after August 9, 2012
  • Minimum 14 days’ imprisonment if offence occurred between November 1, 2005 and August 8, 2012
  • No minimum if offence occurred prior to November 1, 2005

Sexual Exploitation (of a Person Under 18 years) (Section 153)

By Indictment:

  • Maximum 14 years’ imprisonment if offence occurred on or after July 17, 2015
  • Maximum 10 years’ imprisonment if offence occurred between August 9, 2012 and July 16, 2015
  • Maximum 5 years’ imprisonment if offence occurred prior to August 9, 2012
  • No minimum (Minimum 1-year imprisonment for offences occurring after August 9, 2012 struck down as unconstitutional)
  • Minimum 45 days’ imprisonment if offence occurred between November 1, 2005 and August 8, 2012
  • No minimum if offence occurred prior to November 1, 2005

By Summary Conviction

  • Maximum 2 years less a day’s imprisonment if offence occurred after July 17, 2015
  • Maximum 18 months’ imprisonment if offence occurred between November 1, 2005 and July 17, 2015
  • Maximum 6 months’ imprisonment if offence occurred prior to November 1, 2005
  • Minimum 90 days’ imprisonment if offence occurred on or after August 9, 2012
  • Minimum 14 days’ imprisonment if offence occurred between November 1, 2005 and August 8, 2012
  • No minimum if offence occurred prior to November 1, 2005

Sexual Exploitation (of an Adult with a Disability) (Section 153.1)

By Indictment

  • Maximum 5 years’ imprisonment
  • No minimum

By Summary Conviction

  • Maximum 18 months’ imprisonment
  • No minimum

Child Luring (Section 172.1)


Note: As noted above, for offences committed on or after July 17, 2015, if a sexual offence is committed against more than one child, sentences must be served consecutively.   The law is presently unclear as to whether or not child luring itself (which, arguably, is an act done for the purpose of committing a sexual offence but is not a sexual offence itself) would be considered a “sexual offence committed against a child”. Given the present wording of the legislation, it is our opinion that it is not. Assuming the correctness of that opinion, a court would not be legally obligated to order that sentences be served consecutively and have the discretion to order concurrent sentences upon conviction for, say, child luring and sexually interfering with that same child.

 By Indictment

  • Maximum 14 years’ imprisonment if offence occurred on or after July 17, 2015
  • Maximum 10 years’ imprisonment if offence occurred between August 9, 2012 and July 17, 2015
  • Maximum 5 years’ imprisonment if offence occurred prior to August 9, 2012
  • No minimum (Minimum 1-year imprisonment for offences occurring after August 9, 2012 struck down as unconstitutional)
  • No minimum if offence occurred prior to August 9, 2012

By Summary Conviction

  • Maximum 2 years less a day’s imprisonment if offence occurred on or after July 17, 2015
  • Maximum 18 months’ imprisonment if offence occurred on or after November 1, 2005
  • Maximum 6 months’ imprisonment if offence occurred prior to November 1, 2005
  • Minimum 6 months’ imprisonment if offence occurred on or after July 17, 2015.  (Some lower courts have held that for offences during this period, this mandatory minimum does not apply in specific cases.)
  • Minimum 90 days’ imprisonment if offence occurred between August 9, 2012 and July 17, 2015.  (Some lower courts have held that for offences during this period, this mandatory minimum does not apply in specific cases.)
  • No minimum if offence occurred prior to August 9, 2012

Possessing or Accessing Child Pornography (Section 163.1)

Note: For offences committed on or after July 17, 2015, if a person is convicted of a child pornography offence and also a sexual offence involving a child, sentences must be served consecutively. This means that any minimum sentences set out below would have to be added to the minimum sentence for any other offence to determine the actual minimum sentence of imprisonment in a given case.

By Indictment

  • Maximum 10 years’ imprisonment if offence occurred on or after July 17, 2015
  • Maximum 5 years’ imprisonment if offence occurred prior to July 17, 2015
  • No Minimum if offence occurred on or after July 17, 2015 (This 1-year mandatory minimum sentence struck down as unconstitutional)
  • No Minimum if offence occurred between  August 9, 2012 and July 17, 2015 (This 6-month mandatory minimum sentence for Possession struck down as unconstitutional.  It is highly likely that same result would apply if tested in an Accessing case).
  • Minimum 45 days’ imprisonment if offence occurred between November 1, 2005 and August 9, 2012

By Summary Conviction

  • Maximum 2 years less a day’s imprisonment if offence occurred on or after July 17, 2015
  • Maximum 18 months’ imprisonment if offence occurred after November 1, 2005
  • Maximum 6 months’ imprisonment if offence occurred prior to November 1, 2005
  • Minimum 6 months’ imprisonment if offence occurred on or after July 17, 2015   (Although some lower courts have held that this mandatory minimum does not apply in specific cases.)
  • No minimum if offence occurred between August 9, 2012 and July 16, 2015 (Minimum 90 days’ imprisonment struck down as unconstitutional).
  • Minimum 14 days’ imprisonment if offence occurred between November 1, 2005 and August 9, 2012
  • No minimum if offence occurred prior to November 1, 2005

Making or Distributing Child Pornography (Section 163.1)

By Indictment

  • Maximum 14 years’ imprisonment if offence occurred on or after July 17, 2015
  • Maximum 10 years’ imprisonment if offence occurred between August 9, 2012 and July 16, 2015
  • Minimum 1 years’ imprisonment if offence occurred on or after November 1, 2005 (The mandatory minimum for Making Child Pornography has been struck down as unconstitutional by an appellate court in another province.)  The mandatory minimum for Distribution of Child Pornography has, however, been struck down as unconstitutional by a superior court in British Columbia. .
  • No minimum if offence occurred prior to November 1, 2005

By Summary Conviction

  • Maximum 2 years less a day’s imprisonment if offence occurred on or after August 9, 2012
  • Maximum 18 months’ imprisonment if offence occurred between November 1, 2005 and August 9, 2012
  • Maximum 6 months’ imprisonment if offence occurred prior to November 1, 2005
  • Minimum 6 months’ imprisonment if offence occurred on or after August 9, 2012
  • Minimum 90 days’ imprisonment if offence occurred between November 1, 2005 and August 9, 2012
  • No minimum if offence occurred prior to November 1, 2005

Note: For offences committed on or after July 17, 2015, if a sexual offence is committed against more than child, sentences must be ordered to be served consecutively.

Voyeurism (Section 162)

By Indictment

  • Maximum 5 years’ imprisonment
  • No minimum

By Summary Conviction

  • Maximum 6 months’ imprisonment
  • No minimum

 

 Alternatives to Jail for Sexual Offences

There are alternatives to jail that the court can order in certain circumstances, even if you are convicted of a sexual offence.  These include:

Conditional or Absolute Discharge (No Criminal Record)

Where an offence carries no minimum penalty and has a maximum penalty of less than 14 years’ imprisonment, a court can find you guilty but nonetheless decline to enter a conviction.  In these circumstances, the court would “discharge” you either absolutely or on conditions that would be set out in a probation order that would last for a defined period.  The big advantage to this disposition is that it is a way to avoid a criminal record even are you found guilty.  Even when they are not statutorily barred, discharges for sexual offences are uncommon – in the rare cases where they are granted, there will be less serious facts and significant mitigating circumstances.

Suspended Sentence

A suspended sentence is one where the court enters the conviction but, rather than fining you or sentencing you to a term of imprisonment, places you on probation for up to 3 years.  If you fail to abide by the terms of your probation order, you can be returned to court and sentenced at that time.  Sentence cannot be suspended where the offence carries a mandatory minimum term.

Probation

Probation is not a sentence all by itself but must be attached to either a conditional discharge or suspended sentence or be added to the end of a jail sentence. Probation orders consist of a number of conditions. Common conditions for persons convicted of sexual offences might include “no contact” or “no go” conditions similar to those in the terms of your original release.  They might also include a requirement that you attend certain counselling or other programs under the direction of your probation officer.  Or, on occasion, the requirement that you perform community work service.

Conditional Sentence or “House Arrest”

A conditional sentence is one where the court imposes a “jail term” but orders that it be served in the community under or by “house arrest”.  These sentences are only available for terms of less than 2 years and can be followed by a probation order of up to 3 further years.  Conditional sentence orders generally permit you to leave your home for work, shopping and medical appointments and are obviously an attractive alternative to jail.  The downside is they tend to be longer in duration than straight jail terms and there is no remission (parole) earned in respect of them.  Also, if you breach a conditional sentence order, you may be required to serve out the balance of the sentence in jail.   Whether a conditional sentence is legally available for a given sexual offence will depend on many factors, including when the offence was committed and whether the Crown has elected to proceed in the case by way of summary conviction or indictment.

How the National Sex Offender Registry Works

Who Has to Register

With very few exceptions (like certain instances of voyeurism or indecent acts), if you are convicted of a sexual offence, the judge has no option but to order that you comply with the Sex Offender Registration Act for a period of 10 years, 20 years or life, depending on the nature of the charge. As a registered sex offender, you are obligated to report within 7 days after you are sentenced (if not in custody) and after release (if you are serving a jail term) and once a year after that.

Information You Have to Provide to the Sex Offender Registry

In the course of registration, you are also obligated to provide:

  • your given name and surname and every alias that you use;
  • your date of birth and gender
  • the address of your main residence and every secondary residence that you have and a telephone number at which you can be reached there. (Note: After the initial report, any change in address must be reported within 7 days.)
  • the address of every place at which you are employed or retained or are engaged on a volunteer basis, a telephone number at which you can be reached there, the type of work that you do there, and the name of the person who employs, engages or retains you to do that work
  • the address of every educational institution at which you are enrolled
  • the number of every mobile telephone or pager in your possession
  • your height, weight and a description of any physical distinguishing mark that you have
  • a full description, including licence plate number, of any motor vehicle registered to you or that you use regularly

After the initial report, apart from reporting in person once a year, you are further obligated to:

  • notify the registry of any change of address within 7 days of the change
  • notify the registry of any change in the details regarding employment or volunteer work within 7 days of the change
  • in the event you are going to be away from your residence or secondary residence for more than 7 days, you must notify the registry of that fact. If you’re going to be in Canada, you must notify the registry of any other address or location where you are going to be in Canada

Confidentiality of Information

Fortunately, the information that you provide pursuant to the Sex Offender Registration Act has a high degree of privacy and confidentiality attached to it. Generally, it is only disclosed for law enforcement purposes, and even then under strict conditions.

Notice and Obligation to Comply (Because of Past Conviction)

The Sex Offender Registration Act became law on December 15, 2004. Since that time, the order that an offender comply with the Act is made at the time of sentencing. It is also possible, however, for the people with convictions for sex-related offences prior to December 15, 2004 who were still serving sentences at that time to be ordered to register as sex offenders, even though the law did not exist when they were convicted.

If you are in that position, you will receive a “Notice and Obligation to Comply With Sex Offender Registration Act”. If you are served with such a notice, it is possible to apply to the court for an exemption. An exemption may be granted on the basis that in your circumstances, the impact on you of having to comply would be “grossly disproportionate” to the aims of the legislation. This is very much a matter of judicial discretion and success on such an application will vary from judge to judge.

The “High Risk” Child Sex Offender Database 

The High Risk Child Sex Offender Database Act was enacted by the Conservative Government in 2015 but has not yet been  proclaimed into law. The significant difference between the High Risk Child Sex Offender Database Act and the Sex Offender Registration Act is that the High Risk Child Sex Offender Database is designed to be publicly accessible whereas the Sex Offender Registry database is confidential and accessible only to law enforcement. It is unknown whether the present or some future government will proclaim this legislation.

DISCLAIMER

The statement above is not legal advice. It is simply intended to give a very general understanding of these offences and some of the possible issues and defences that might be considered in defending them. For legal advice on sexual offences, click here.