Sexual Offences Involving Children

In Canada, sexual offences against children are codified separately from sexual offences against adults. Aside from offences related to prostitution and trafficking, four core sexual offences against children exist: Sexual Interference, Invitation to Sexual Touching, Sexual Exploitation, and Child Luring.

Sexual Interference

Sexual Interference involves touching, directly or indirectly, a person under 16 for a sexual purpose.^[1] To secure a conviction, the Crown must establish that the defendant a) intentionally made contact with the body of someone, b) that they were aware was under 16 (or they were reckless, or wilfully blind to that fact), c) for a sexual purpose.^[2]

Sexual Purpose

Whether touching had a sexual purpose is determined contextually.^[3] It is defined by the sexual nature of the touching itself rather than the area of the body touched.^[4] This means that innocent touching of a sexualized area (e.g., a parent changing a diaper) is not criminalized, but contact with a nonsexual body part (e.g., a child’s arm) for a sexual purpose would be. The touch also does not need to be for the sexual gratification of the defendant themself. An overtly sexual act, even if the defendant gets no sexual gratification from it, may still be considered to be done for a sexual purpose.^[5]

Invitation to Sexual Touching

Closely related to Sexual Interference is Invitation to Sexual Touching, which involves inviting, counselling, or inciting a person under 16 to touch themself or another person for a sexual purpose.^[6] In addition to showing that the defendant knowingly communicated with someone underage for a sexual purpose, the Crown must also establish that the defendant intended that the child would receive the communication as an invitation, counselling, or incitement for them to touch, or made it reckless to the risk that it could be taken as such.

An invitation requires the defendant to ask the complainant to touch either them or the complainant and can be either explicit or implied.^[7] Counselling involves deliberately encouraging or actively inducing the conduct.^[8] Inciting involves some sort of recommendation or suggestion that the act take place.^[9] This must be a positive act on the part of the defendant, rather than just passive acceptance.^[10]

Sexual Exploitation

Sexual Exploitation extends liability to sexual interference or invitation to sexual touching with people aged 16-17 that are in a power-imbalanced relationship with the defendant.^[11] Whether there is a power imbalance is determined in the unique context of each case, with reference to factors such as the age gap, the evolution of the relationship, status, degree of influence, and expectations of the parties involved.^[12] To support the charge, the relationship must exist independently of the sexual relationship.^[13]

Section 153(1) of the Criminal Code specifies four types of relationships sufficient for a Sexual Exploitation charge:

1. Positions of Trust: where the complainant believes in the reliability, truth and strength of the person, founded on notions of safety and confidence that this faith will not be taken advantage of.^[14]
2. Positions of Authority: relationships in which the defendant has the power to influence the complainant’s behaviour or enforce their obedience. The parties do not require formal roles (like teacher and student) for a position of authority to exist, although such roles will usually be sufficient to establish one.^[15]
3. Relationships of Dependency: where a young person relies on a figure who has assumed a position of power.^[16]
4. Exploitative Relationships: relationships not falling into the other categories which nonetheless involve a power imbalance which leaves the young person vulnerable to the actions and conduct of the defendant.^[17] It is not necessary for the defendant to take advantage of the relationship to engage in the alleged sexual conduct..^[18]

Child Luring

Child Luring involves using the internet to communicate with a person under the age of 18 for the purpose of committing a sexual offence (such as sexual interference or kidnapping).^[19] To achieve a conviction, the Crown must prove that the defendant a) deliberately communicated by computer, b) with a person that they knew or believed was underage (or whose age they were reckless or wilfully blind to), c) for the specific purpose of facilitating a sexual offence.^[20] Sexually explicit messages with a child are not in themselves criminal unless the Crown can establish beyond a reasonable doubt that their purpose was to facilitate an offence.

The Purpose of Facilitating an Offence

Communicating for the purpose of facilitating an offence involves knowingly making any communications that make the specific offence easier or more probable.^[21] The sexual offence in question does not actually need to be committed. In fact, it is not necessary for the Crown to prove that there is a “present intent to meet the child” or even that the sexual offence is objectively possible.^[22] Similarly, explicitly sexual comments are not necessary to establish the offence as non-sexual communication can still be used to establish a relationship of trust.^[23] The Crown only needs to show that the communication was made with the subjective intent to make an offence more feasible.

Defences: Consent

Consent is not usually an available defence to sexual offences against minors. Persons under the age of 16 cannot legally consent to sexual activity, with two limited exceptions.^[24] Complainants aged 12-13 can consent to sexual activity with someone less than two years older than them, and complainants aged 14-15 can consent to sexual activity with someone less than five years older. Both exceptions do not apply where there is a power imbalance in the relationship as defined for Sexual Exploitation.

Defences: Mistaken Belief in Age

The defence of mistaken belief in age is available where the defendant honestly believed the complainant was of age and took (all) reasonable steps to determine their age.^[25] What is reasonable in the circumstances may consider the complainant’s physical appearance and demeanour, the age and appearance of their associates, their age difference with the defendant, and the time and location of the alleged sexual assault, in addition to any other relevant factors.^[26] More steps are generally required between less familiar parties.^[27]

————————————-

^[1] Criminal Code, R.S.C 1985 c C-46, s.151 [Criminal Code].

^[2] R v WG, 2021 ONCA 578 (CanLII) at paras 51, 69.

^[3] R v DM, 2022 BCCA 120 at para 34.

^[4] R v GB, 2009 BCCA 88 (CanLII), 244 CCC (3d) 185 at paras 27-29 [GB].

^[5] Ibid.

^[6] Criminal Code, supra note 1, s.152.

^[7] R v Carbone, 2020 ONCA 394 (CanLII) at para 61.

^[8] R v Hamilton, 2005 SCC 47 (CanLII), [2005] 2 SCR 432 at para 29.

^[9] R v DLW, 2013 BCSC 1327 (CanLII), BCJ No 1620 at para 240.

^[10] Ibid.

^[11] Criminal Code, supra note 1, s.153(1).

^[12] R v Aird, 2013 ONCA 447 (CanLII), 307 OAC 183 at para 28.

^[13] R v CG, 1994 CanLII 215 (ON CA) [CG].

^[14] R v S (P), [1993] OJ No 704 (Ont Gen Div) at paras 36-37; Affirmed on appeal, R v S (P), [1994] OJ No 3775 (Ont CA).

^[15] R v Audet, 1996 CanLII 198 (SCC), [1996] 2 SCR 171 at paras 34-37 [Audet].

^[16] CG, supra note 13.

^[17] R v Anderson, 2009 PECA 4 at paras 73-77; R v Damaso, 2013 ABCA 79 (CanLII), 544 AR 69 at paras 29-30.

^[18] Audet, supra note 15 at paras 17-19.

^[19] Criminal Code, supra note 1, s.172.1(1)

^[20] R. v. Legare, 2009 SCC 56 (CanLII), [2009] 3 SCR 551 at para 3 [Legare].

^[21] R v Bowers, 2022 ONCA 852 (CanLII) at para 12-16.

^[22] Ibid; Legare, supra note 21 at paras 25, 42.

^[23] Legare, supra note 21 at para 29.

^[24] Criminal Code, supra note 1, ss.150.1(1-3).

^[25] Ibid, ss.150.1(4-6), 172.1(4).

^[26] R v RAK, 1996 CanLII 7277 (NB CA), 106 CCC (3d) 93.

^[27] R v Crangle, 2010 ONCA 451 (CanLII), 77 CR (6th) 98, 256 CCC (3d) 234, leave to appeal refused 416 N.R. 390 (note) (SCC).