INTRODUCTION AND BRIEF DESCRIPTION
A jury or judge can assume the age of a child based on their appearance if no other evidence is available.
SECTION WORDING
658(5) In the absence of other evidence, or by way of corroboration of other evidence, a jury, judge, justice or provincial court judge, as the case may be, may infer the age of a child or young person from his or her appearance.
EXPLANATION
Section 658(5) of the Criminal Code of Canada is a provision that allows a jury, judge, or justice to infer the age of a child or young person based on their appearance when there is no other evidence available. This provision is used when the defendant has been charged with a crime that involves the victim being a child or young person. The section is based on the recognition that it can be difficult to determine the age of a young person, especially in cases where the young person is uncooperative or their birth certificate is not available. In such cases, the appearance of the young person can assist the court in determining their age. However, it is important to note that the inference is not conclusive and must be considered in conjunction with other evidence. This means that the appearance of the young person can be used as a corroborative piece of evidence that can support other evidence in the case. For example, if a defendant is accused of sexual assault against a young person, the appearance of the victim can support medical evidence that may indicate that the victim was a minor at the time of the assault. In summary, section 658(5) of the Criminal Code of Canada is a provision that allows a court to infer the age of a child or young person based on their appearance when no other evidence is available or as a corroboration of other evidence. This provision is used to aid the court in determining the age of young victims in cases where it is difficult to do so, and when the age of the victim is an important factor in determining the guilt or innocence of the defendant.
COMMENTARY
Section 658(5) of the Criminal Code of Canada provides the legal framework for inferring the age of a child or young person from his or her appearance. It is a crucial provision in cases involving young individuals, especially those who have been subjected to criminal offenses. The provision allows the judge, jury, or another authorized official to infer the age of a child or young person from their appearance in the absence of other concrete evidence or to corroborate existing evidence. Canada, like most countries in the world, values and protects the rights of its children and young people. There are laws in place to prevent child exploitation, abuse, neglect, and other offenses that target young people. Thus, it is important that young individuals receive fair treatment and justice in legal proceedings. Section 658(5) addresses this need by providing a legal framework for inferring a young person's age in situations where it may be difficult to determine their true age. The provision acknowledges that physical appearance can be a useful indicator of a person's age. In situations such as human trafficking, it can be challenging to establish the true age of an individual through conventional means. Thus, resorting to physical appearance can be a helpful supplementary tool to support other evidence in such cases. The provision recognizes and respects that young individuals have a right to be protected and treated fairly in legal proceedings and provides an extra layer of protection for them. The provision offers flexibility in determining a young person's age in cases where the conventional means may not suffice. However, it is essential to note that the provision does not allow for arbitrary conclusions based solely on physical appearance. Instead, it acts as corroborative evidence to support other concrete evidence. Therefore, the authorized official must exercise caution and make a logical and reasonable determination. However, there are concerns that the provision may be subject to abuse. A biased or discriminatory official may use physical appearance to make an arbitrary determination, leading to an unfair outcome. Given that the provision provides an extra layer of protection for young individuals, any abuse of the provision could result in a violation of their rights. It is crucial to ensure that the authorized officials exercise caution and make a reasonable decision based on all available evidence, including physical appearance. To prevent abuse of the provision, there needs to be adequate monitoring and accountability mechanisms in place. This could include measures such as mandatory training and regular assessments of authorized officials who may need to use the provision. In conclusion, section 658(5) of the Criminal Code of Canada provides a helpful legal framework for determining the age of children or young individuals in unique situations. It acknowledges the importance of physical appearance as an indicator of age while ensuring that the process is fair and just. However, there is a need to ensure that it is not subject to abuse, and adequate measures should be in place to prevent misuse of the provision.
STRATEGY
Section 658(5) of the Criminal Code of Canada can be an important tool for prosecutors when dealing with cases involving child victims or young persons. It allows for an inference of age based on appearance when other evidence is absent or requires corroboration. However, this provision also raises important strategic considerations for both the prosecution and the defence. One key consideration is the reliability and accuracy of using appearance to infer age. This can be especially challenging in cases where a child or young person may have a physical or cognitive disability that affects their appearance or ability to communicate their age. In such cases, it may be necessary to obtain additional evidence, such as medical records or testimony from caregivers, to verify the age of the victim. Another consideration is the potential for bias or prejudice against certain racial, ethnic, or cultural groups. Research has shown that individuals from certain backgrounds may be perceived as younger or older than their actual age based on cultural stereotypes or physical characteristics. It is important for prosecutors and defence lawyers to be aware of these biases and ensure that they do not influence the judge or jury's decision-making. In cases where appearance is the primary evidence of age, defence lawyers may challenge the interpretation of the evidence or argue that the inference is unreliable. They may also seek to introduce other evidence that contradicts the inference, such as birth certificates or passport records, to cast doubt on the victim's age. Prosecutors, on the other hand, may employ a range of strategies to bolster the use of appearance as evidence of age. This may include presenting expert testimony from medical professionals or child development specialists to support the inference, as well as providing photographic or video evidence of the victim's appearance at the time of the alleged offence. Overall, the strategic considerations around section 658(5) highlight the importance of a careful and evidence-based approach to prosecuting cases involving child victims or young persons. Both the prosecution and defence must carefully weigh the reliability and accuracy of evidence, be aware of potential biases or cultural stereotypes, and employ persuasive arguments and evidence to support their case.