Criminal Code of Canada - section 172.1(3)

section 172.1(3)

INTRODUCTION AND BRIEF DESCRIPTION

If someone is represented to an accused person as being under a certain age, it is assumed that the accused believed they were under that age unless there is evidence otherwise.

SECTION WORDING

172.1(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 eighteen years, sixteen years or fourteen 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 172.1(3) of the Criminal Code of Canada establishes the legal principle that, in certain cases, a defendant's belief or knowledge regarding the age of a victim in a sexual offence can be inferred from the circumstances of the case. Specifically, if the accused was told that the alleged victim was under a certain age (either 18, 16, or 14 depending on the type of offence), then in the absence of other evidence to the contrary, it will be presumed that the accused believed the victim to be under that age. This provision is particularly relevant in sexual offences involving minors, where the age of the victim is a crucial element in determining whether a crime has been committed and the severity of the offence. However, it is not intended to be a blanket defence for defendants who claim they were unaware of the victim's age. If there is evidence to suggest that the accused had reason to doubt the victim's age or knew that they were lying about it, then this presumption will not apply. Section 172.1(3) serves to shift the burden of proof onto the prosecution to demonstrate that the accused did not have a reasonable belief that the victim was of legal age. This provision recognizes that it is not always easy for defendants to determine the true age of their sexual partners, particularly in situations where there may be some ambiguity or uncertainty about the victim's age. However, it also ensures that defendants cannot simply claim ignorance as a defence when they have reason to suspect that the victim may be underage. Overall, Section 172.1(3) is an important provision in the Criminal Code of Canada because it seeks to balance the need to protect minors from sexual exploitation with the rights of defendants to a fair trial and the presumption of innocence.

COMMENTARY

Section 172.1(3) of the Criminal Code of Canada has far-reaching implications in cases related to sexual offenses against minors. It essentially establishes a presumption of guilt against the accused if the crown can establish that the victim in question was represented as being under 18, 16, or 14 years old. The stipulation that this presumption is 'in the absence of evidence to the contrary' effectively shifts the burden of proof from the prosecution to the defense. It is now incumbent on the accused to provide evidence to establish that they did not believe that the victim was under the age represented. In essence, Section 172.1(3) has created a legal fiction by conflating the accused's knowledge about the victim's age with their belief about the same. This is problematic for several reasons- firstly, it conflates two distinct concepts, i.e., knowledge and belief. While knowledge is an objective fact, belief is subjective and open to interpretation. Secondly, this presumption effectively renders any attempt to establish the accused's actual knowledge about the victim's age irrelevant. Thus, even if the accused can prove that they had no knowledge that the victim was a minor, their subjective belief (or lack thereof) about the same is what matters legally. Given that Section 172.1(3) comes into play in offences where the victim has been represented as being underage, there is also a risk of false accusations being used as a bargaining chip or leverage in blackmail situations. It is not difficult to imagine a scenario where someone lies about their age deliberately to entrap another party into committing an offence and then using the same to extract money or favors. To be sure, the presumption established in Section 172.1(3) is not absolute- it is open to rebuttal by evidence to the contrary. However, the burden of providing the same rests on the accused, which can be a hurdle in itself- especially where the accused is not a legal expert and may not be aware of the intricacies of the law. In conclusion, Section 172.1(3) of the Criminal Code of Canada has its pros and cons. While it is designed to protect minors and deter sexual offenses against them, this presumption can also lead to false accusations and legal complexities. It is up to the courts to strike a balance and ensure that justice is served in each case based on the available evidence.

STRATEGY

Section 172.1(3) of the Criminal Code of Canada is an important provision that provides a presumption of belief for offenders who are charged with sexual offenses against minors. If the prosecution can prove that the accused believed that the victim was under that age, then he or she can be convicted of the offense. However, if the accused can provide evidence to the contrary, then he or she may be able to avoid conviction. One of the critical strategic considerations when dealing with this section of the Criminal Code of Canada is how to challenge the presumption of belief. The prosecution has to prove that the accused believed that the victim was under the age of eighteen, sixteen, or fourteen years, as the case may be. The accused can challenge this presumption by presenting evidence that suggests that he or she did not believe that the victim was a minor. The defense can argue that the accused was misled, that the accused did not have an opportunity to verify the victim's age, or that the victim falsely represented his or her age. Another strategic consideration is how to challenge the credibility of the victim's testimony. Victims of sexual offenses are often vulnerable and may not remember the exact details of the incident. The defense can challenge the victim's testimony by presenting evidence that suggests that the victim's memory is unreliable. The defense can also question the victim's motives or suggest that the victim may be lying. A third strategic consideration is how to negotiate with the prosecution in cases where the accused is clearly at fault. If it is evident that the accused engaged in sexual conduct with a minor, then the defense may want to negotiate a plea bargain with the prosecution. The defense can offer to plead guilty to a lesser charge in exchange for a reduced sentence. There are several strategies that defense counsel can employ when dealing with this section of the Criminal Code of Canada. The defense can research the age of consent laws in the jurisdiction where the offense allegedly occurred and use this information to challenge the presumption of belief. The defense can also conduct an investigation to gather evidence that suggests that the accused did not believe that the victim was a minor. Additionally, the defense can hire an expert witness to testify on behalf of the accused. In conclusion, Section 172.1(3) of the Criminal Code of Canada provides a presumption of belief for offenders accused of sexual offenses against minors. Strategic considerations when dealing with this provision include challenging the presumption of belief, challenging the credibility of the victim's testimony, and negotiating with the prosecution. The defense can employ strategies such as researching the age of consent laws, conducting an investigation, or hiring an expert witness to challenge the prosecution's case.