Criminal Code of Canada - section 172.2(3)

section 172.2(3)

INTRODUCTION AND BRIEF DESCRIPTION

If it is proven that someone was presented as under a certain age, it is assumed the accused believed them to be under that age in cases involving sexual exploitation or luring of a minor.

SECTION WORDING

172.2(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 172.2(3) of the Criminal Code of Canada is a provision that deals with the issue of proving the accused's belief regarding the age of the victim in certain sexual offenses. This section states that if a person is accused of sexual offense against a minor, evidence that the accused believed that the victim was under the age of 18, 16 or 14 as the case may be, is proof of the accused's belief that the victim was under that age, unless there is evidence to the contrary. This provision is based on the idea that a person may not be culpable if they had a reasonable belief that the victim was old enough to consent to the sexual activity. Thus, if the accused can show that they reasonably believed the victim was of legal age, then they may not be convicted of the offense charged. For example, if an adult has sexual relations with someone they believe to be 18 years or older, but who is actually under that age, the accused may be able to use this provision to prove that they believed the victim was of legal age. This may be particularly relevant in cases where the victim has lied about their age or presented themselves as being older than they actually are. However, it is important to note that this provision applies only to certain sexual offenses where the age of the victim is an element of the offense. It does not apply to offenses such as sexual assault or assault with a weapon, where the age of the victim is not relevant. In addition, this provision is not a defense in cases where the accused knew or ought to have known the victim was a minor. In summary, Section 172.2(3) of the Criminal Code of Canada provides an important rule of evidence in certain sexual offenses, allowing the accused to prove their belief in the age of their victim. This provision reflects the importance of ensuring that the accused's culpability matches with their level of knowledge and intention when committing a sexual offense.

COMMENTARY

Section 172.2(3) of the Criminal Code of Canada plays an essential role in Canadian criminal law. It is a provision that is applied in cases of sexual offenses, particularly in cases of sexual exploitation, invitation to sexual touching, and luring a child. The section provides an evidentiary rule that accepts the representations made to the accused by another person as proof that an accused person believed that the other person was under the age of 18, 16, or 14 years. The section codifies the defence of mistaken belief in age, which has existed in Canadian law for over a century. The defence is based on the idea that an accused person cannot be found guilty of a sexual offence if they had a genuine and reasonable belief that the other person was above the age of consent, which is currently 16 years in Canada. The defence has been applied in several cases to acquit accused persons who genuinely believed that the other person was above the age of consent. However, the defence of mistaken belief in age has sometimes been criticized for allowing accused persons to escape criminal liability for their actions. Critics argue that the defence permits accused persons to engage in sexual activities with children and avoid responsibility for their actions by claiming that they did not know the actual age of the child. These critics advocate for a strict liability approach to sexual offences where an accused person is liable for their actions regardless of their knowledge or belief about the age of the other person. Section 172.2(3) strikes a balance between the need to protect children from sexual exploitation and the need to avoid wrongful convictions of accused persons. It requires accused persons to provide evidence to the contrary if they do not believe that the other person was under the age of consent. The section is therefore a hybrid of strict liability and mens rea approaches to criminal liability. The provision recognizes that beliefs about the age of the other person are critical to determining criminal liability for sexual offences, but also acknowledges that accused persons who lacked criminal intent should not be punished for their actions. One of the practical implications of section 172.2(3) is that it places a burden on the accused person to prove that they did not believe that the other person was under the age of consent. This burden can be difficult to meet, especially in cases where the accused person did not have a prior relationship with the other person or did not have a chance to verify their age. Accused persons often find themselves facing criminal charges simply because they failed to inquire about the age of the other person before engaging in sexual activities. In conclusion, section 172.2(3) of the Criminal Code of Canada is a significant provision that recognizes the importance of beliefs about the age of the other person in determining criminal liability for sexual offences. The provision balances the need to protect children from sexual exploitation with the need to avoid wrongful convictions of accused persons. However, the provision places a burden on accused persons to prove that they did not believe that the other person was under the age of consent, which can be difficult to meet in practice. The section is an essential tool in Canada's criminal justice system, but it must be applied with care and caution to ensure that justice is served for all parties involved.

STRATEGY

Section 172.2(3) of the Criminal Code of Canada is a provision that creates a rebuttable presumption of belief in the accused person's mind that the victim was under a certain age (18,16 or 14) if it can be shown that the accused was represented by the victim or another person as being under that age. This creates strategic considerations for both the prosecution and defense when pursuing charges or defending oneself against charges of sexual offenses against minors. For the prosecution, proving that the accused believed the victim was under the relevant age is an essential element of the offense. Therefore they will need to focus on gathering evidence that the accused was aware of or represented that the victim was under a certain age. This can include chat messages, emails, photographs, or any other communication that can show the accused's intention in pursuing the offense. The prosecution may also seek to build a case based on extrinsic evidence, such as whether the accused was a pedophile, had a history of sexually abusing minors, or had other factors in their personal lives that may suggest that they were aware of the victim's age. On the other hand, the defense will try to rebut the presumption of belief by showing that the accused had no reason to believe that the victim was underage. For instance, this could be shown by providing evidence that the victim misrepresented their age, or that the accused took reasonable steps to verify the victim's age but still ended up being deceived. In such a scenario, the defense would argue that the presumption of belief based on the evidence of the victim's representation was incorrect, and therefore the accused could not be considered guilty of the offense. One of the strategies that could be employed by the prosecution when dealing with Section 172.2(3) would be to gather as much evidence as possible regarding the accused's intention in pursuing the offense. This could include searches for evidence on the accused's computers, cellphones, or other devices they might have used. The prosecution could also track any communications between the accused and their victim and gather statements from any witnesses who may have knowledge of the accused's intentions or behavior around the time of the incident. The defense, on the other hand, might want to challenge the reliability of the victim as they are probably the most significant source of information under this provision. For example, the accused could argue that the victim showed no signs of being a minor and that their accompanying evidence shows that they represented themselves differently than their real age. The defense may also produce evidence that suggests that the accused was taking reasonable measures to verify the age of the victim. In conclusion, Section 172.2(3) creates a rebuttable presumption of belief in the accused person's mind that the victim was underage. As such, it is an essential provision in cases involving sexual offenses against minors. Prosecutors must focus on gathering sufficient evidence to prove that the accused was aware of the victim's age, while the defense will wish to dispute this evidence and highlight reasonable steps that they may have taken to verify the victim's age. Ultimately, the evidence available will determine the outcome of such cases.