Criminal Code of Canada - section 150.1(2.1) - Exception Complainant Aged 14 or 15

section 150.1(2.1)

INTRODUCTION AND BRIEF DESCRIPTION

This section provides a defence for an accused charged with a sexual offence against a complainant aged 14-16 if the complainant consented, and the accused is within a certain age range or married to the complainant.

SECTION WORDING

150.1(2.1) When an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 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 (a) the accused (i) is less than five years older than the complainant; and (ii) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant; or (b) the accused is married to the complainant.

EXPLANATION

Section 150.1(2.1) of the Criminal Code of Canada provides a defense for individuals who are charged with sexual offenses in relation to a complainant who is between the ages of 14 and 16 years old. Specifically, if the complainant consented to the sexual activity and the accused meets certain conditions, they may be excused from criminal responsibility. One of the conditions is that the accused is less than five years older than the complainant and does not hold any position of trust or authority over them. This means that the accused must not be in a professional or familial relationship with the complainant that would create a power dynamic that could be exploited. Furthermore, the accused cannot be in a relationship with the complainant that is exploitative or dependent. If the accused is married to the complainant, this also serves as a defense. This exception exists because marriage is a legal recognition of a relationship that is assumed to be consensual. It is important to note that this defense does not apply to all scenarios and there are still many situations where an individual may be charged and convicted of a sexual offense, even if the complainant consented to the activity. As such, individuals must still exercise caution and understand the nuances of sexual consent and the laws that come with it.

COMMENTARY

Section 150.1(2.1) of the Criminal Code of Canada provides a defence for an accused charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is 14 years of age but under the age of 16 years. The defence is based on whether the complainant consented to the activity that forms the subject-matter of the charge and is subject to two conditions. The first condition of the defence is that the accused is less than five years older than the complainant and is not in a position of trust or authority towards the complainant, a person with whom the complainant is in a relationship of dependency, or in an exploitative relationship with the complainant. This condition is reasonable as it recognizes that there may be situations where young people of a similar age engage in sexual activity with each other, and criminalizing such behaviour may not be appropriate or in the public interest. The second condition of the defence is that the accused is married to the complainant. This condition is more controversial as it effectively allows for sexual activity with a young person if the accused is married to them, regardless of the circumstances under which the marriage occurred. The potential for abuse of this defence is significant, particularly in cases where the young person may have been coerced or manipulated into marriage. Moreover, it sets a dangerous precedent that marriage can be used as an excuse to engage in sexual activity with a young person. It is important to note that the defence only applies to charges relating to sexual activity with a young person who is between 14 and 16 years of age. Sexual activity with a young person under 14 years of age is considered a much more serious offence and is not subject to this defence. Additionally, the defence does not apply if the accused is in a position of trust or authority towards the complainant or in a relationship that is exploitative of the complainant. This recognizes that sexual activity that occurs within certain power imbalances or in exploitative relationships should still be considered criminal behaviour, regardless of whether the complainant consented to the activity. In summary, Section 150.1(2.1) of the Criminal Code of Canada does provide a reasonable defence for accused individuals who engaged in sexual activity with young people between the ages of 14 and 16, provided that certain conditions are met. However, the defence is not without controversy, particularly in cases where the accused is married to the complainant. It will be interesting to see how this defence is utilized in practice and whether any amendments to the legislation are proposed based on its application.

STRATEGY

Section 150.1(2.1) of the Criminal Code of Canada provides a defence for an accused charged with sexual offences against a complainant who is 14 years of age or more but under the age of 16 years. The defence is available if the complainant consented to the activity forming the subject matter of the charge, and certain conditions are met. This section introduces several strategic considerations when dealing with such cases. Firstly, the defence is only available if the accused is less than five years older than the complainant and is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency, and is not in an exploitative relationship with the complainant. Therefore, the accused's age and relationship with the complainant are critical factors in determining whether this defence is available. Secondly, the defence places the burden of proving consent on the accused. Although the complainant's evidence may suggest that they consented, the accused still has to establish that the conditions for the defence have been met. This requires the accused to adduce evidence, such as testimony from witnesses or personal testimony, to show that they met the conditions for the defence. Thirdly, it is essential to recognize that even if the accused meets the conditions for the defence, their conduct may still be considered inappropriate or immoral. The Criminal Code of Canada has recognized that persons under the age of 16 are incapable of giving informed consent to sexual activity. Therefore, even if the accused can prove that the complainant consented, it is still important to consider whether the accused's conduct was appropriate in light of the complainant's age and vulnerability. In light of the above, several strategies could be employed when dealing with this section of the Criminal Code of Canada. Counsel for the accused may consider the following: 1. Conduct a thorough investigation: In cases where the defence is available, it is essential to conduct a thorough investigation of all relevant circumstances, such as the identity of the complainant, their age, and their relationship with the accused. Doing so will allow counsel to determine whether the conditions for the defence have been met. 2. Develop a defence strategy: Once the investigation is complete, counsel can develop a defence strategy that takes into account the available evidence and the accused's relationship with the complainant. 3. Challenge the evidence: Counsel may challenge the evidence presented by the prosecution, such as by cross-examining the Crown's witnesses and pointing out inconsistencies in their evidence. 4. Present evidence: Counsel may present evidence that supports the accused's version of events. This may include corroborating testimony from witnesses or personal testimony from the accused. 5. Mitigation: If the accused's conduct is found to be inappropriate, counsel may attempt to mitigate any potential sentence by presenting arguments to the court regarding mitigating factors, such as the accused's lack of prior convictions or their personal circumstances. In conclusion, the availability of the defence under section 150.1(2.1) of the Criminal Code of Canada introduces specific strategic considerations in cases where an accused is charged with a sexual offence against a complainant under the age of 16. To effectively handle such cases, counsel must conduct thorough investigations, develop defence strategies, challenge evidence, present evidence, and mitigate any potential sentence.