INTRODUCTION AND BRIEF DESCRIPTION
A young persons consent or suggestion is not a defense to charges under sections 280-283.
SECTION WORDING
286 In proceedings in respect of an offence under sections 280 to 283, it is not a defence to any charge that a young person consented to or suggested any conduct of the accused.
EXPLANATION
Section 286 of the Criminal Code of Canada is a specific provision that declares that consent is not a defence in cases where a young person is involved in an offence under sections 280 to 283. These sections specifically deal with offences related to abduction, procurement, and sexual exploitation of young persons. The provision aims to protect minors from sexual exploitation and ensures that they cannot be charged with consenting to their exploitation or suggesting any conduct to the accused. The law recognizes that minors are vulnerable and easily manipulated. Even if a minor had provided a clear and definite consent, the law does not allow that to be used as a consideration for a defence in any criminal proceeding. Therefore, even if a minor gave consent, it is still considered illegal and punishable to engage in any form of sexual activity with them. Section 286 is essential in preventing the sexual exploitation of young persons and holding those who prey on minors accountable for their actions. It ensures that young people are protected and are not blamed for their exploitation. It sends a clear message that the onus is on adults to prevent the sexual exploitation of minors and makes it clear that any form of exploitation or abuse of children is unacceptable and punishable by law.
COMMENTARY
Section 286 of the Criminal Code of Canada is a vital provision aimed at protecting young people from exploitation. The provision states that in any proceedings relating to an offence under sections 280 to 283 of the Criminal Code, it is not a defence to any charge that a young person consented or suggested any conduct of the accused. This provision is a reflection of the larger societal responsibility to safeguard the welfare of children and youth in Canada. The provision is primarily designed to cover situations of sexual exploitation of children. Sexual exploitation of children is an extremely harmful practice and can have acute and long-lasting impacts on the lives of young people. It is also a significant concern in Canada. According to research, 67% of reported sexual assault incidents in Canada are perpetrated against children under the age of 18. While there are other mechanisms to protect children, including laws against child pornography and grooming, section 286 of the Criminal Code is one of the most comprehensive and forceful instruments available to Canadian prosecutors. The section is notable for its disregard of the issue of consent, which is often a crucial consideration in other areas of the law. The reason behind this is clear: it is impossible for a young person to provide genuine consent when the conduct in question involves sexual exploitation. Children and youth are inherently vulnerable, and their ability to make informed decisions is limited. This provision recognizes that power dynamics in such contexts are often uneven and can leave young people susceptible to exploitation. Importantly, the section focuses on the responsibility of the accused and not the actions of the victim, which is a departure from some other areas of law. Section 286 of the Criminal Code of Canada is an effective tool in addressing sexual exploitation of children. The section is designed to prevent abusers from attempting to use the defence of consent as a means to escape liability. Even if a young person appears to have outwardly provided consent to the accused's conduct, the accused is still responsible if the sexual conduct involved exploitation. This provision highlights the critical role that the legal system can play in protecting the most vulnerable in society and contributing to the prevention of harm. In conclusion, section 286 of the Criminal Code of Canada is an essential provision aimed at protecting Canadian children and youth from exploitation. By prohibiting defendants from using the defence of consent, the section demonstrates a clear commitment to safeguarding the welfare of the most vulnerable members of society. As such, it sends a strong message to abusers that sexual exploitation of children will not be tolerated in Canada. Moreover, it symbolizes a shared societal responsibility to ensure that children and youth are protected and supported as they grow and develop.
STRATEGY
Section 286 of the Criminal Code of Canada is a provision that has significant implications for cases involving sexual offences against children. It eliminates the possibility of a defence that a young person has consented to or initiated any conduct of the accused, thus making it easier for prosecutors to obtain a conviction against those who engage in sexual activity with minors. However, while this provision offers increased protection to young people, it also poses a variety of strategic considerations and challenges for those who are dealing with cases relating to the sexual abuse of minors. Here are a few things to keep in mind when approaching this provision: 1. Focus on establishing the accused's actions: Since this provision eliminates consent as a defence, the focus of the case must be on the actions of the accused rather than the behaviour or desires of the victim. It is important to establish that the accused engaged in sexual activity with a minor, regardless of whether the minor consented. 2. Consider alternative charges: While section 286 eliminates the defence of consent, other sections of the Criminal Code may still apply to the case. For example, if the accused used force or threatened the minor, charges under sections 265 or 346 may be more appropriate. 3. Narrate the events: In order to establish the accused's actions, it is important to construct a detailed and coherent narrative of the events that led to the charges. This may require interviewing witnesses or gathering evidence from multiple sources. 4. Handle disclosures carefully: In cases involving sexual abuse of minors, it is common for the victim to disclose the abuse to someone they trust, such as a teacher, counsellor, or family member. It is essential to handle these disclosures carefully and ensure that any statements made by the victim are properly documented and handled in accordance with the law. 5. Build a strong case: Given the seriousness of the charges and the lack of a consent defence, it is important to build a strong case against the accused. This may involve working closely with the police, forensic experts, and other professionals to gather and present evidence. In terms of strategic considerations, there are several strategies that could be employed when dealing with section 286 of the Criminal Code. These strategies include: 1. Emphasizing the importance of protecting minors: By focusing on the vulnerability of minors and the importance of protecting them from sexual abuse, prosecutors can underscore the seriousness of the charges and build support for the case. 2. Presenting a clear and compelling narrative: As noted above, constructing a clear and compelling narrative of the events is essential to establishing the accused's actions. This narrative should be presented in a way that is easy to understand and that emphasizes the harm caused by the accused's actions. 3. Working closely with experts: Given the complexity of many cases involving sexual abuse of minors, it is often necessary to work with a variety of experts, including forensic specialists, medical professionals, and child welfare professionals. By working closely with these experts, prosecutors can strengthen their case and provide the court with a more detailed and comprehensive picture of the situation. 4. Ensuring victim support: Victims of sexual abuse may require substantial emotional and psychological support during and after the trial. It is essential to ensure that victim support services are available and that victims are aware of their rights and options. Overall, section 286 of the Criminal Code of Canada is a provision that presents a variety of strategic considerations and challenges for those dealing with cases involving sexual offences against minors. However, by following best practices and employing effective strategies, prosecutors can build strong cases that prioritize the safety and well-being of young people.