The legal age of consent to sexual activity refers to the age at which the criminal law recognizes the legal capacity of a young person to provide such consent.1 Below this age, most sexual activity with a young person, ranging from sexual touching to sexual intercourse, is prohibited.
For more than 100 years, beginning with the 1892 consolidation of Canada's first Criminal Code, the age of consent to sexual activity was 14, with a small exception introduced in 1987 which allowed consensual sexual activity between a person aged 12 to 14 and someone who was close in age. The age of consent was raised to 16 in 2008.
This paper presents many of the offences in Canada related to the age of consent to sexual activity, as well as some of the legal issues connected with them.
The 1892 consolidation of Canada's first Criminal Code contained this provision: “It is no defence to a charge for any indecent assault on a young person under the age of fourteen years to prove that he or she consented to the act of indecency.” 2 For offences such as the prohibition of sexual intercourse with girls under 14 who were not married to the accused, the accused's belief as to the age of the young woman was irrelevant.3
That age limit was retained for over a century, save for a narrow exception for consensual sexual activity between young persons who are close in age, which was added to the Criminal Code 4 by an amending statute given Royal Assent in 1987.5 This allowed for sexual activity with someone between the ages of 12 and 14.
The 1987 amendments also created new, more gender‑neutral, offences called “sexual interference” and “invitation to sexual touching,” which prohibited adults from engaging in virtually any kind of sexual contact with either boys or girls under the age of 14, irrespective of consent. In addition, the offence of “sexual exploitation” made it an offence for an adult to have any such contact with boys and girls over 14 but under 18, where a relationship of trust or authority exists between the adult and child.
With its coming into force on 1 May 2008, the Tackling Violent Crime Act 6 raised the age of consent in Canada to 16. In general under this Act, a person below the age of 16 cannot consent to sexual activity. There are, nonetheless, “close‑in‑age” exceptions for young people aged 12 to 14 and 14 to 16, where consent to sexual activity can be valid. Consent is not a defence, however, when, for example, it is obtained by use of threats or force or when a person is incapable of giving consent. Any non‑consensual sexual activity is sexual assault regardless of the age of the people involved.
The Criminal Code does not criminalize non‑exploitative, consensual sexual activity with or between persons who are 16 years of age or older, unless it takes place in a relationship of trust or dependency, in which case sexual activity with persons over 16 but under 18 can constitute an offence, notwithstanding consent. Even consensual activity with those under 14 but over 12 may not be an offence if the accused is less than two years older than the complainant.
One exception to the age of consent is found in section 159 of the Criminal Code, which makes 18 the age of consent to anal intercourse, unless it is an act engaged in, in private, between husband and wife.7
Section 150.1 of the Criminal Code stipulates that the consent of complainants under specified ages is not a defence in particular cases enumerated in the section.
It is an offence to touch any part of the body of a person under the age of 16 for a sexual purpose (which is not defined). When, however, an accused is charged with an offence under section 151 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:
If an accused is charged with an offence under section 151 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 the accused:
This is a hybrid offence8 with a mandatory minimum sentence of imprisonment for one year (upon indictment) or 90 days (upon summary conviction). The maximum penalty for this offence is imprisonment for up to 14 years (upon indictment) or two years less a day (upon summary conviction).
It is an offence to invite, counsel or incite a person under the age of 16 to touch any person's body for a sexual purpose (which is not defined). The same close‑in‑age exemptions as outlined for the section 151 offence apply to the section 152 offence.
This is a hybrid offence, with a mandatory minimum sentence of imprisonment for one year (upon indictment) or 90 days (upon summary conviction). The maximum penalty for this offence is imprisonment for up to 14 years (upon indictment) or two years less a day (upon summary conviction).
It is an offence for anyone who is in a position of trust or authority toward a young person, or is a person with whom the young person is in a relationship of dependency, or is in a relationship with the young person that is exploitative of the young person to commit acts amounting to either sexual interference (section 151) or invitation to sexual touching (section 152) against the young person. In section 153, “young person” means someone who is 16 or 17 years old.
The section states that a judge may infer that the accused is in a relationship with a young person that is exploitative of the young person from the nature and circumstances of the relationship, including the age of the young person, the age difference between the accused and the young person, the evolution of the relationship, and the degree of control or influence by the accused over the young person.
This is a hybrid offence with a mandatory minimum sentence of imprisonment for one year (upon indictment) or 90 days (upon summary conviction). The maximum penalty for this offence is imprisonment for up to 14 years (upon indictment) or two years less a day (upon summary conviction).
In certain instances, the age of a person involved determines whether the activity in question constitutes a criminal offence. One example is that of pornography. It is not a criminal offence to depict adults engaging in sexual activity unless the depiction is considered “obscene.” The term “obscene” is defined in section 163(8) of the Criminal Code as having “a dominant characteristic of … undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence.”
By contrast, any showing of sexual activity involving someone depicted as being under 18 years of age is a criminal offence. In the case of child pornography, it is not necessary to prove that the depiction of the sexual activity was obscene.
A number of other offences where the age of the victim determines whether that particular offence has been committed are set out below.
It is an offence with a separate punishment regime to commit bestiality in the presence of a person under the age of 16 years or to incite a person under the age of 16 years to commit bestiality.
This is a hybrid offence, with a mandatory minimum sentence of imprisonment for one year (upon indictment) or six months (upon summary conviction). The maximum penalty for this offence is imprisonment for 14 years (upon indictment) or two years less a day (upon summary conviction).
It is an offence to make, print, publish, possess, access, transmit, make available, distribute, sell, advertise, export, import or possess for the purpose of publication or transmission child pornography. Child pornography is broadly defined and includes:
A defence to a charge under this section is that the act alleged to constitute the offence has a legitimate purpose related to the administration of justice or to science, medicine, education or art, provided that the act does not pose an undue risk of harm to persons under the age of 18 years.
There are a range of punishments for the various types of child pornography offences, with a maximum punishment of 14 years' imprisonment and a minimum punishment of imprisonment for one year. It is an aggravating factor in sentencing if the offence was committed with the intent to make a profit.
It is an indictable offence for every parent or guardian of a person under the age of 18 to procure9 that person for the purpose of engaging in any sexual activity prohibited by the Criminal Code with a person other than the parent or guardian.10
The maximum sentence for this offence is 14 years' imprisonment, and the minimum sentence is one year's imprisonment.
It is an indictable offence for every owner, occupier or manager of premises to knowingly permit a person under the age of 18 years to be on the premises for the purpose of engaging in any sexual activity prohibited by the Criminal Code.
The maximum sentence for this offence is 14 years' imprisonment, and the minimum sentence is one year's imprisonment.
It is an offence to transmit, make available, distribute or sell sexually explicit material11 to a person under the age of 18 years, for the purpose of facilitating the commission of a number of offences with respect to that person. It is also an offence to carry out these activities with respect to a person under the age of 16 or 14 years, for the purpose of facilitating the commission of various age‑specific offences concerning that person.12 In all cases, the accused can be found guilty where the young person is, or the accused believes the young person is, under the relevant age.
This is a hybrid offence, with a mandatory minimum sentence of imprisonment for six months (upon indictment) or 90 days (upon summary conviction). The maximum penalty for this offence is imprisonment for 14 years (upon indictment) or two years less a day (upon summary conviction).
It is an indictable offence for any person in the home of a child to participate in adultery or sexual immorality or to indulge in habitual drunkenness or any other form of vice, and thereby endanger the morals of the child or render the home an unfit place for the child to be in. In this section, “child” means a person who is or appears to be under the age of 18 years.
The maximum sentence for this offence is two years' imprisonment. This offence may only be prosecuted with the Attorney General's consent, unless the prosecution is by a recognized society for the protection of children (such as a Children's Aid Society) or by an officer of a youth court.
It is an offence to use telecommunication to communicate with a person under the age of 18, 16, or 14 years, as the case may be, for the purpose of facilitating the commission of a number of Criminal Code offences with respect to that person.13 In all cases, the accused can be found guilty where the young person is, or the accused believes the young person is, under the relevant age.
This is a hybrid offence, with a mandatory minimum sentence of imprisonment for one year (upon indictment) or six months (upon summary conviction). The maximum penalty for this offence is imprisonment for 14 years (upon indictment) or two years less a day (upon summary conviction).
It is an offence to agree with a person or make an arrangement with a person by means of telecommunication to commit an offence with respect to another person under the age of 18, 16, or 14 years.14 In all cases, the accused can be found guilty where the young person is, or the accused believes the young person is, under the relevant age. Section 172.2 explicitly states that it is no defence that the person with whom the accused agreed or made an arrangement was a peace officer or someone acting under the direction of a peace officer.
This is a hybrid offence, with a mandatory minimum sentence of imprisonment for one year (upon indictment) or six months (upon summary conviction). The maximum penalty for this offence is imprisonment for 14 years (upon indictment) or two years less a day (upon summary conviction).
It is an offence to expose one's genitals to a person under the age of 16 if the accused does so for a sexual purpose. The close‑in‑age exemptions outlined for the section 151 offence of sexual interference apply to the section 173(2) offence.
This is a hybrid offence, with a mandatory minimum sentence of imprisonment for 90 days (upon indictment) or 30 days (upon summary conviction). The maximum penalty for this offence is imprisonment for two years (upon indictment) or six months (upon summary conviction).
It is an offence to do anything for the purpose of removing from Canada a person who is ordinarily resident in Canada and who is:
Anyone who contravenes this section is guilty either of an indictable offence and is liable to imprisonment for a maximum term of five years or of an offence punishable on summary conviction.
It is an indictable offence to recruit, transport, transfer, receive, hold, conceal or harbour a person under the age of 18 years, or exercise control, direction or influence over the movements of a person under the age of 18 years, for the purpose of exploiting them or facilitating their exploitation.
The punishment for this offence is a minimum of six years' imprisonment and a maximum of life imprisonment if the offender kidnaps, commits an aggravated assault or aggravated sexual assault against, or causes death to, the victim during the commission of the offence. In any other case, the minimum punishment is five years' imprisonment and the maximum punishment is 14 years' imprisonment. Related offences include receiving a material benefit from trafficking of a person under 18 years of age (section 279.02(2)) and withholding or destroying documents related to trafficking of a person under 18 years of age (section 279.03(2)).
Abduction of person under sixteen (section 280) and abduction of person under fourteen (section 281) are two other offences that are defined by the age of the victim. While they do not reference sexual activity, they are frequently referred to in sexual offences involving young people, such as making sexually explicit material available to child (section 171.1), luring a child (section 172.1), and agreement or arrangement: sexual offence against child (section 172.2).
It is an indictable offence to obtain the sexual services of a person under the age of 18 years for money or something else of value.
The punishment for this offence is a maximum of 10 years' imprisonment and a minimum of six months' imprisonment for a first offence and one year's imprisonment for each subsequent offence.
Section 286.2(2) makes it an offence to receive a material benefit from the commission of an offence under section 286.1(2). By the terms of section 286.5, no person shall be prosecuted for this offence if the benefit is derived from the provision of their own sexual services.
It is an indictable offence to procure a person under the age of 18 years to offer or provide sexual services for money or something else of value.
The punishment for this offence is a maximum of 14 years' imprisonment and a minimum of five years' imprisonment.
It is an indictable offence to celebrate, aid or participate in a marriage rite or ceremony knowing that one of the persons being married is under the age of 16, regardless of whether that person is doing so voluntarily.
The maximum punishment for this offence is imprisonment for five years.
For certain offences, age is a factor to be considered when imposing a sentence. In some instances, a mandatory minimum sentence applies if the victim is below a certain age, while in others the maximum penalty is increased if the victim is below a certain age. The offences in which age is an additional factor in sentencing are presented below.
It is an indictable offence to have sexual intercourse with another person, knowing that the person is a parent, child, brother, sister, grandparent or grandchild by blood relationship.
There is a mandatory minimum sentence of imprisonment for five years if the other person is under the age of 16 years. The maximum penalty for this offence is imprisonment for 14 years.
It is an offence to commit a sexual assault. “Sexual assault” is not defined in the Criminal Code. “Assault” is defined in section 265 as applying force intentionally to another person without that person's consent.15 This definition encompasses a wide variety of conduct. The close‑in‑age exemptions outlined for the section 151 offence of sexual interference apply to the section 271 offence.
If the complainant is under the age of 16 years, the punishment for this hybrid offence is a mandatory minimum sentence of imprisonment for one year (upon indictment) or six months (upon summary conviction). If the complainant is under 16 years of age, the maximum penalty for this offence is imprisonment for 14 years (upon indictment) or two years less a day (upon summary conviction).
It is an indictable offence to commit a sexual assault while carrying, using or threatening to use a weapon or an imitation of a weapon; threatening to cause bodily harm to a person other than the complainant; or causing bodily harm to the complainant.
If the complainant is under the age of 16 years, the punishment for this offence is a mandatory minimum sentence of imprisonment for five years, while the maximum penalty is imprisonment for life. Different punishments apply when the complainant is older than 16 and when there are other considerations, such as the use of a firearm in the commission of the offence.
It is an indictable offence, while committing a sexual assault, to wound, maim, disfigure or endanger the life of the complainant.
If the complainant is under the age of 16 years, the punishment for this offence is a mandatory minimum sentence of imprisonment for five years, while the maximum penalty is imprisonment for life. Different punishments apply when the complainant is older than 16 and when there are other considerations, such as the use of a firearm in the commission of the offence.
As mentioned in section 4.2 above, there is no specific definition of “sexual assault” in the Criminal Code. Instead, the Criminal Code relies upon the definition of “assault” found in section 265. This section defines an assault, in part, as applying force intentionally to another person without that person's consent. It then goes on to state that no consent is obtained where the complainant submits or does not resist by reason of:
Section 273.1 of the Criminal Code provides another gloss on the meaning of the term “consent” for the sexual assault offences. For the purposes of sections 271, 272 and 273, “consent” means the voluntary agreement of the complainant to engage in the sexual activity in question. No consent is obtained where:
Section 273.2 of the Criminal Code then states that 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:
Thus, an accused person can argue in defence that a complainant consented to the sexual activity in question. This consent, however, cannot be assumed or taken as implied or given in advance.16 An accused person must show what steps he or she took to ascertain that there was clear, ongoing consent and that those steps were reasonable in the circumstances of the case.
A number of the offences outlined above can be prosecuted in Canada even if the offence is committed beyond Canada's borders. It is an offence for a Canadian to travel outside of Canada and engage in any sexual activity with a young person that is against the law in Canada. Section 7(4.1) of the Criminal Code states that every person who, outside Canada, commits an act or omission that if committed in Canada would be an offence against any of numerous sections of the Criminal Code 17 shall be deemed to commit that act or omission in Canada if the person is a Canadian citizen or a permanent resident.
In addition, by the terms of section 7(4.11) of the Criminal Code, everyone who, outside Canada, commits an act or omission that if committed in Canada would be an offence against section 279.011 (trafficking of a person under the age of 18 years), 279.02 (material benefit – trafficking) or 279.03 (withholding or destroying documents – trafficking) shall be deemed to commit that act or omission in Canada if the person is a Canadian citizen or a permanent resident.
Section 150.1 of the Criminal Code starts with the general rule that when an individual is charged with an offence under section 151 (sexual interference), 152 (invitation to sexual touching), 153(1) (sexual exploitation), 160(3) (bestiality in presence of or by child) or 173(2) (exposure) or is charged with an offence under section 271, 272 or 273 (the types of sexual assault) 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.
However, this section then sets out certain “close‑in‑age” exceptions to the general rule. First, when an accused is charged with an offence under section 151, 152, 173(2), or 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:
Second, if an accused is charged with an offence under section 151, 152, 173(2), or 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 the accused:
In addition to the close‑in‑age defence, section 150.1 addresses the defence known as “mistaken belief.” The section makes it clear that it is not a defence to a charge under section 151, 152, 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.
The same provision applies where the complainant is believed to be 18 years of age or more when the charge is one under section 153 (sexual exploitation), 170 (parent or guardian procuring sexual activity), 171 (householder permitting prohibited sexual activity), 172 (corrupting children), 286.1(2) (obtaining sexual services for consideration from person under 18 years), 286.2(2) (material benefit from sexual services provided by person under 18 years) or 286.3(2) (procuring – person under 18 years).
Furthermore, an accused cannot raise a mistaken belief in the age of the complainant in order to invoke a close‑in‑age defence unless the accused took all reasonable steps to ascertain the age of the complainant. The accused must show what steps he or she took and that those steps were all that could be reasonably required of him or her in the circumstances.18
It may be more difficult to determine the age of a young person when the only contact with him or her is by means of telecommunication, as with the luring offence set out in section 172.1 of the Criminal Code. This section repeats that it is not a defence to a charge under the luring section that the accused believed that the person he or she was in contact with 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. It goes further, though, in stating that evidence that the young person contacted was represented to the accused as being under the age of 18, 16 or 14 years is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.
When children are the alleged victims of one of the offences discussed above, special rules may be invoked to assist them in giving evidence or to protect their interests. Thus, while section 486 of the Criminal Code states that there is a presumption that proceedings against an accused shall be held in open court, a judge may order the exclusion of the public or the shielding of a witness from public view under a number of circumstances, one of which is the need to safeguard the interests of witnesses under the age of 18 years. Section 486 goes further and requires a judge to state the reason for not excluding the public if an application is made for such an order by the prosecutor or the accused where the accused is charged with a number of offences involving young people.19
Section 486.1 of the Criminal Code sets out the circumstances in which a judge will permit a support person to be near to a witness (including the complainant) while the witness testifies. One of these circumstances is that of a witness who is under the age of 18 years. Such an order shall be made upon application of the prosecutor or the witness unless the judge is of the opinion that it would interfere with the proper administration of justice.
While section 650 of the Criminal Code states that an accused, other than an organization, shall be present in court during the whole of his or her trial, section 486.2 provides that this need not be the case in certain circumstances. Section 486.2 stipulates that a judge shall, on application of the prosecutor regarding a witness (including the complainant) who is under the age of 18 years or on application of such a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused. There is provision for a judge who is of the opinion that the order would interfere with the proper administration of justice not to give this order.
By the terms of section 486.3 of the Criminal Code, a judge shall, on application of the prosecutor regarding a witness (including the complainant) who is under the age of 18 years, or on application of such a witness, order that the accused not personally cross‑examine the witness, unless the judge is of the opinion that the proper administration of justice requires the accused to personally conduct the cross‑examination. If such an order is made, the judge shall appoint counsel to conduct the cross‑examination.
Section 486.4 of the Criminal Code concerns the power of a judge, in proceedings for offences under numerous sections of the Criminal Code,20 to make an order directing that any information that could identify the victim or a witness not be published or broadcast in any way. Section 486.4 instructs the presiding judge to, at the first reasonable opportunity, inform any witness under the age of 18 years and the victim of the right to make an application for a non‑publication order. Upon application by the victim, the prosecutor or a witness under the age of 18 years in a trial concerning a listed offence, the judge shall make the order.
Where the trial does not concern one of the listed offences, the presiding judge may also make a non‑publication order if the victim is under the age of 18 years. In proceedings for an offence under section 163.1 (child pornography), a judge shall make an order directing that any information that could identify a witness who is under the age of 18 years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography, not be published or broadcast in any way.
Section 715.1 of the Criminal Code states that, in any proceeding against an accused in which a victim or other witness was under the age of 18 years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge is of the opinion that admitting the video would interfere with the proper administration of justice.
Section 658 of the Criminal Code deals with some of the methods by which the age of a person may be proven. It specifies that the testimony of a person as to the date of his or her birth is admissible as evidence of that date. The testimony of a parent as to the age of his or her child is also admissible, as is a birth or baptismal certificate. If there is no other evidence, a jury or judge may infer the age of a child or young person from his or her appearance.
Section 16.1 of the Canada Evidence Act 21 states that any person under 14 years of age is presumed to have the capacity to testify. It says that such a proposed witness shall not take an oath or make a solemn affirmation; the evidence shall be received if the witness is able to understand and respond to questions. A party who challenges the capacity to testify of a proposed witness under 14 years of age has the burden of satisfying the court that there is an issue as to that capacity. If the court is satisfied that there is a capacity issue, it shall conduct an inquiry to determine whether the proposed young witness is able to understand and respond to questions. The court shall, before permitting a proposed witness under 14 years of age to give evidence, require the witness to promise to tell the truth. If the evidence of a witness under 14 years of age is received by the court, it shall have the same effect as if it were taken under oath.
Certain legal consequences may follow conviction for a number of the offences described above. Section 718.01 of the Criminal Code provides that, in imposing a sentence for an offence involving the abuse of a person under the age of 18 years, the court shall give primary consideration to the objectives of denunciation and deterrence. Under section 718.2 of the Criminal Code, evidence that the offender, in committing the offence, abused a person under the age of 18 years is an aggravating circumstance in sentencing. Under both of these provisions, therefore, the sentence for abusing a young person would tend to be a heavier one than when the victim of the abuse is an adult.
A conviction for committing a sexual offence against a young person may carry consequences in addition to a sentence of imprisonment and a criminal record.
When an offender is convicted of a specified sexual offence in respect of a person who is under the age of 16 years, the court that sentences the offender may impose an order of prohibition under section 161 of the Criminal Code. This order can prohibit the offender from:
The prohibition order may be for life or some shorter period, and its terms may be varied upon application of the offender or the prosecutor. Under section 42(2)(j) of the Youth Criminal Justice Act,22 a section 161 prohibition order may not be imposed upon a young person. Failure to comply with the order is a hybrid offence, with a maximum punishment of four years' imprisonment upon indictment or 18 months' imprisonment upon summary conviction.
Under section 164.2 of the Criminal Code, a court that convicts a person of an offence under section 163.1 (child pornography), 172.1 (luring a child) or 172.2 (agreement or arrangement – sexual offence against child) may order that anything – other than real property – be forfeited to Her Majesty and disposed of as the Attorney General directs if the court is satisfied, on a balance of probabilities, that the thing was used in the commission of the offence and is the property of:
Given the nature of the three offences referred to in this section, the property used to commit them will often be computers and telecommunication devices. Section 164.3 provides the procedure for a person claiming an interest in things forfeited under section 164.2, and who had not been a party to the offence or who had not been given the thing to avoid forfeiture, to obtain an order declaring that the person's interest is not affected by the forfeiture order. This may result in the thing being returned to the person or their receiving compensation for it.
Under section 487.051 of the Criminal Code, a court must authorize the taking of samples of bodily substances for the purpose of forensic DNA analysis from a person who is convicted, who is discharged under section 730, or who is found guilty under the Youth Criminal Justice Act or the Young Offenders Act, of a primary designated offence listed in section 487.04. These bodily substances are stored in the national DNA data bank established under the DNA Identification Act.23 A number of the offences mentioned in this publication are included in the list of primary designated offences.24
Under section 490.012 of the Criminal Code, when a court imposes a sentence on a person for certain designated offences or renders a verdict of not criminally responsible on account of mental disorder for one of those offences, it must order the person to comply with the Sex Offender Information Registration Act 25 for the applicable period specified in section 490.013 of the Criminal Code. Depending upon the offence and its maximum punishment, the registration as a sex offender can last for 10 years, 20 years or life. The designated offences are set out in section 490.011 of the Criminal Code; they are the same as those listed for mandatory DNA orders (see section 8.2 of this paper).
Under the Sex Offender Information Registration Act, a sex offender must report to a registration centre and provide specified information, such as the address of every place at which he or she is employed or retained or is engaged on a volunteer basis. He or she must also give notice of any changes in this information, as well as any absences from his or her residence. Under section 7 of the Act, a sex offender who is under 18 years of age has the right to have an “appropriate adult” chosen by him or her in attendance when he or she reports to a registration centre and when information is collected.
Conviction for a number of the offences discussed could also lead to a determination that the offender is a dangerous or a long‑term offender. Under section 753(1.1) of the Criminal Code, there is a presumption that the person convicted of a primary designated offence is a dangerous offender if the appropriate sentence is imprisonment for two years or more and the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions. A “primary designated offence” for these purposes is defined in section 752 of the Criminal Code as including the following offences:
If a court finds an offender to be a dangerous offender, the default sentence is one of imprisonment for an indeterminate period.
If the court does not find an offender to be a dangerous offender, it may find him or her to be a long‑term offender. To make such a finding, the court must be satisfied that there is a substantial risk that the offender will reoffend and that there is a reasonable possibility of eventual control of the risk in the community.
Section 753.1(2) of the Criminal Code states that a court shall be satisfied that there is a substantial risk that the offender will reoffend if the offender has been convicted of one or more of the offences discussed in this publication26 and the offender has, by sexual conduct including that involved in the offence for which the offender has been convicted, shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. A court may also be satisfied that there is a substantial risk that the offender will reoffend if he or she has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to other persons or inflicting severe psychological damage on other persons. If the court finds an offender to be a long‑term offender, it shall impose a minimum punishment of imprisonment for a term of two years, and order that the offender be subject to long‑term supervision for a maximum of 10 years.
Under section 810.1 of the Criminal Code, a person may apply to a provincial court judge for an order requiring the defendant to enter into a recognizance or peace bond (an obligation entered into before a judge by which the defendant must keep the peace and be of good behaviour) including conditions resembling the conditions which can be imposed as part of a prohibition order under section 161. The applicant must fear, on reasonable grounds, that the defendant will commit one of a number of specified sexual offences in respect of a person under 16 years of age. The order can last for up to one year, unless the defendant was previously convicted of a sexual offence in respect of a person under 16 years of age, in which case the recognizance can last for up to two years.
Anyone convicted of one of the offences discussed in this publication will have a criminal record. By the provisions of the Criminal Records Act,27 an offender can apply for a record suspension (pardon) after a certain period has elapsed since the expiration of a sentence. The effect of a record suspension is that the judicial record of the conviction is kept separate and apart from other criminal records. A criminal record search for a person should not, therefore, reveal any record for those offences for which a record suspension has been granted. In general, a person is ineligible to apply for a record suspension if he or she has been convicted of a number of the offences discussed in this publication.28
A person who has been convicted of one of the listed offences may, however, still apply for a record suspension if the Parole Board of Canada is satisfied that:
An exception to the non‑disclosure of a criminal record for which a record suspension has been granted is made if a person applies for a paid or volunteer position and the position is one of authority or trust relative to children or vulnerable persons. Should the applicant consent to the verification, the information that the applicant has been convicted of certain specified offences may be disclosed, so long as this information is used only in relation to the assessment of the application. The specified offences in this instance are set out in Schedule 2 of the Criminal Records Act and include many of the offences discussed above.
There are other potential consequences of not being able to obtain a record suspension because the offence at issue was a sexual offence involving a young person. One of these is an inability to legally travel to countries whose entry rules bar persons with criminal records.
Another consideration applies specifically to foreign nationals and permanent residents in Canada. Section 36 of the Immigration and Refugee Protection Act 29 states that a permanent resident or a foreign national is inadmissible to Canada on grounds of serious criminality for having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed. The section goes on to state, however, that this inadmissibility may not be based on a conviction for which a record suspension has been ordered. Thus, the inability to obtain a record suspension means a foreign national or permanent resident may be deported from Canada or denied entry into it.
† Library of Parliament Background Papers provide in-depth studies of policy issues. They feature historical background, current information and references, and many anticipate the emergence of the issues they examine. They are prepared by the Parliamentary Information and Research Service, which carries out research for and provides information and analysis to parliamentarians and Senate and House of Commons committees and parliamentary associations in an objective, impartial manner. [ Return to text ]
Note that, as with the DNA provisions (discussed in note 24), Schedule 1 makes references to historical sexual offences.
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