INTRODUCTION AND BRIEF DESCRIPTION
In the absence of evidence to the contrary, if a person is represented to the accused as being under a certain age, it is proof that the accused believed the person to be under that age.
SECTION WORDING
171.1(3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of 18, 16 or 14 years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.
EXPLANATION
Section 171.1(3) of the Criminal Code of Canada plays an important role in convicting individuals for offences related to sexual exploitation of minors. The section states that evidence demonstrating that the person in question was represented to the accused as being under the age of 18, 16 or 14 years, depending on the specific offence charged, will constitute proof that the accused believed the person to be under that age unless there is evidence to the contrary. This provision is crucial as it allows the prosecution to prove the accused's state of mind, specifically their belief regarding the age of the person they engage in sexual activity with, without a direct admission from the accused. The section recognizes that individuals who engage in such activities may have believed that the person in question was of a legal age and thus, the prosecution needs to prove beyond a reasonable doubt that the accused had the required knowledge of the person's age. This section also reflects Canada's commitment to protecting children from sexual exploitation and recognizes the power imbalance between adults and minors. It prevents individuals from using the defense of "mistaken belief in age" to escape conviction and deters would-be offenders by demonstrating that ignorance is not a defense when it comes to sexual activity with children. In summary, Section 171.1(3) of the Criminal Code of Canada plays an important role in prosecuting individuals who engage in sexual activity with minors. It acknowledges the power imbalance between adults and minors and ensures that offenders cannot use their own ignorance about a child's age as a defense.
COMMENTARY
Section 171.1(3) of the Criminal Code of Canada is aimed at protecting minors from adult sexual exploitation. This section establishes a legal presumption that the accused believed the victim was under the age of 18, 16 or 14 years if there is evidence that the accused had been told by the victim or someone else that the victim was underage. This legal presumption simplifies the burden of proof in a criminal trial, as it shifts the onus onto the accused to prove that they did not have the necessary knowledge of the victim's age. This section of the Criminal Code of Canada reflects a recognition of the power dynamics at play in sexual situations between minors and adults. Children and youth are especially vulnerable to sexual abuse and exploitation because they are often unable to recognize the risks associated with sexual activity or to protect themselves from such exploitation. The legal presumption in this section recognizes this vulnerability and provides an added layer of protection for young people. It is worth noting, however, that the legal presumption established in section 171.1(3) is not absolute. Evidence to the contrary can be introduced to rebut the presumption, and the accused can attempt to provide evidence that they genuinely believed the victim was of legal age. For instance, the accused may have asked the victim their age, relied on identification presented by the victim, or other similar indicators. Moreover, it is important to recognize that the legal presumption in this section is only one element of the criminal law response to sexual exploitation of minors. It is just one tool in the arsenal of legal measures aimed at protecting minors from sexual exploitation, alongside other legal provisions, such as age of consent laws. Overall, section 171.1(3) of the Criminal Code of Canada is an important provision that reinforces the message that adults should not engage in sexual activity with minors. It not only simplifies the burden of proof in criminal trials, but also reflects a recognition of the power dynamics at play in sexual relationships between adults and children. However, it is important to bear in mind that the presumption in this section is not absolute and can be rebutted by evidence to the contrary. Finally, it should be remembered that this section is only one component of the broader criminal law response to protecting minors from sexual exploitation, and other measures, such as education and prevention, should also be emphasized.
STRATEGY
Section 171.1(3) of the Criminal Code of Canada creates a presumption that an accused believed a victim was under a certain age if the victim was represented to them as being under that age. As such, when dealing with this section, there are several strategic considerations that must be taken into account. The first strategic consideration is to determine whether the presumption applies in the given case. In order for the presumption to apply, the victim must have been represented to the accused as being under a certain age. This means that evidence must be presented to show that the victim presented themselves as being under a certain age, or that someone else represented the victim as being under a certain age. If there is no such evidence, the presumption will not apply. The second strategic consideration is to determine whether evidence to the contrary exists. If there is evidence to the contrary, the presumption will not be enough to prove that the accused believed the victim was under a certain age. Evidence to the contrary may include things like the accused's prior knowledge of the victim's age, or other evidence suggesting that the accused did not truly believe the victim was under a certain age. Assuming that the presumption applies and that there is no evidence to the contrary, the third strategic consideration is how to best challenge the presumption. One possible strategy is to argue that the accused was not aware of the presumption and did not believe it applied. This may require presenting evidence to show that the accused was not aware of the law or did not understand how it applied to their case. Another possible strategy is to argue that the presumption is irrational or unfair in the given case. This may require presenting evidence to show that the victim either did not look like they were under a certain age, or that the accused had reason to believe that the victim was actually older than they were represented to be. Overall, when dealing with Section 171.1(3) of the Criminal Code of Canada, it is important to carefully consider the evidence and any potential challenges to the presumption. By doing so, a skilled criminal defense lawyer can help their client navigate this complex legal issue and potentially achieve a more favorable outcome in their case.