Sexual Offences Against Children

• Author: Lisa Joyal/Jennifer Gibson/Lisa Henderson/David Berg/Kasandra Cronin
• Pages: 141-222



Sexual Ofences

Against Children

6

I. Introduction.............................................. 

II. Sexual Interference ........................................ 

III. Invitation to Sexual Touching ................................ 

IV. Sexual Exploitation ........................................ 

V. Incest................................................... 

VI. Bestiality ................................................ 

VII. Parent or Guardian Procuring Sexual Activity ................... 

VIII. Householder Permitting Prohibited Sexual Activity............... 

IX. Exposure to a Child Under the Age of  Years .................. 

X. Sexual Assault Against a Complainant Under the Age of  Years... 

XI. Sexual Assault with a Weapon, Threats to a Third Party,

or Causing Bodily Harm .................................... 

XII. Aggravated Sexual Assault .................................. 

XIII. Human Trafficking in Persons Under the Age of  Years.......... 

XIV. Receiving a Material Benefit ................................. 

XV. Withholding or Destroying Documents ........................ 

XVI. Offences Pertaining to the Commodification of Sexual

Services by Young Persons .................................. 

© [2023] Emond Montgomery Publications. All Rights Reserved.

Prosecuting and Defending Oences Against Children

I. Introduction

Sexual abuse against children and youth takes many different forms and “can cause

enduring, even lifelong, psychological harm and suffering.”1 Sadly, child sexual

abuse is a significant social problem in Canada.2 A 2012 report from Statistics

Canada showed that while children and youth accounted for only about 20 percent

of Canada’s population, they accounted for more than 55 percent of all victims of

police-reported sexual offences.3 Sexual violations against children also increased dur-

ing the pandemic and its various lockdown iterations. According to the most recent

Statistics Canada report, sexual violations against children rose 14 percent in 2021.4

For many reasons, child sexual abuse law is both difficult and challenging. Whether

one is a Crown counsel who prosecutes these offences, or a defence counsel who pro-

vides legal guidance to accused persons alleged to have committed such offences,

there are myriad issues that arise in the context of this type of litigation.

From a Crown perspective, the prosecution must be sensitive to the privacy inter-

ests and needs of the child at every stage of the prosecution.5 Given the devastating

psychological impact that crimes of sexual abuse can have on children, Crown coun-

sel should ensure that children and, where appropriate, their parents or caregivers

are informed of the services available through a Victim Witness Assistance Program

(VWAP). Crown counsel should also ensure that children and, where appropriate,

their parents or caregivers are informed of the availability of testimonial aids to help

children communicate their evidence.6 The use of testimonial aids may facilitate

the child’s ability to provide a full and candid account of the alleged abuse. Delayed

disclosure and incremental disclosure are common in cases of child sexual abuse.7

Several of these issues are discussed in more detail in Chapter 5, Testimonial Aids.

Crown counsel also need to keep in mind that while the enactment of Bill C-75 on

September 19, 2019 restricted the availability of preliminary inquiries only to those

1 Rv JS, 2018 ONCA 675 at para 121; R v Friesen, 2020 SCC 9.

2 Statistics Canada, Police-Reported Sexual Offences Against Children and Youth in Canada,

2012, by Adam Cotter & Pascale Beaupŕ, Juristat, Catalogue No 85-002-X201400114008

(Ottawa: Statistics Canada, 28 May 2014), online: <https://www150.statcan.gc.ca/n1/en/

catalogue/85-002-X201400114008>.

3 Ibid.

4 Statistics Canada, Police-Reported Crime Statistics in Canada, 2021, by Greg Moreau, Juristat,

Catalogue No 85-002-X (Ottawa: Statistics Canada, 2 August 2022), online: <https://www150

.statcan.gc.ca/n1/pub/85-002-x/2022001/article/00013-eng.htm#a10>.

5 Ontario, Ministry of the Attorney General, Crown Prosecution Manual, online: <https://

www.ontario.ca/document/crown-prosecution-manual>. See directive 27, Offences Against

Children.

6 Ibid.

7 Rv D (D), 2000 SCC 43; Rv DP, 2017 ONCA 263; Rv LK, 2011 ONSC 2562.

© [2023] Emond Montgomery Publications. All Rights Reserved.

Chapter  Sexual Offences Against Children 

offences punishable by a maximum penalty of 14 years or life, almost all of the sexual

offences in the Criminal Code that pertain to children have maximum sentences of

14years. Accordingly, while adult complainants of many offences no longer have to

testify at preliminary hearings about their alleged abuse, children still often have

to testify twice—once at a preliminary hearing and again at trial. To minimize the

trauma to a child complainant in this context, Crown counsel should consider any

policies or practices concerning direct indictments that may exist in their region and

apply for one wherever it may be appropriate.

From a defence perspective, the accused’s situation is also very challenging. The

client comes to defence counsel for advice and representation in respect of charges

that have great stigma attached to them and that can have a severe impact on the

accused’s life once the charges have been laid. Often, the accused is a parent or close

family member of the complainant. The accused’s family can become splintered as

individual family members “take sides” in respect of the allegations. In addition,

given the significant passage of time that sometimes exists between the time of the

alleged abuse and the child’s disclosure to authorities, defences may become chal-

lenging to both investigate and effectively present. Furthermore, the financial costs

of the litigation can be significant, and the accused’s reputation in the community can

become damaged.

Child sexual abuse is prosecuted under numerous offence provisions contained within

the Criminal Code. Parliament created its modern legislative scheme of sexual offences

against children in 1987 by enacting Bill C-15, An Act to amend the Criminal Code and

the Canada Evidence Act.8 In so doing, Parliament’s legislative framework “shifted the

focus of sexual offences against children from chastity or propriety to a ‘child-centred’

approach that emphasizes the trauma to the child victim from all acts of sexual violence.” 9

To that end, Parliament’s legislative scheme of sexual offences against children protects

the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children

and strives to ensure that their rights and interests are respected.10 “Protecting children

from wrongful exploitation and harm is the overarching objective.”11

This chapter will discuss the main offence provisions in the Criminal Code that are

used to prosecute sexual offences against children, as well as the offences that have

statutorily aggravating features when the victims of sexual violence are children or

youth. In addition, this chapter will discuss the defences that are commonly proffered

in child sexual abuse cases, as well as those defences specific to the prosecution of

sexual offences against children, including but not limited to the defence of “mistake

of age” and the “close in age” exceptions.

8 RSC 1985, c 19 (3rd Supp). See Rv Friesen, supra note 1 at para 53.

9 Rv Friesen, ibid at para 53.

10Ibid at paras 1, 42, 51, 54-58.

11Ibid at para 42.

© [2023] Emond Montgomery Publications. All Rights Reserved.