INTRODUCTION AND BRIEF DESCRIPTION
Believing a person to be of legal age is not a defense in charges related to sexual exploitation unless reasonable steps were taken to confirm their age.
SECTION WORDING
172.2(4) It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
EXPLANATION
Section 172.2(4) of the Criminal Code of Canada is an important provision that outlines the requirements for proving a defence in cases where an individual is charged with a sexual offence against a person who is under the age of consent. In Canada, the age of consent is 18 years, although there are exceptions for younger ages of consent in certain circumstances. The provision states that it is not a defence to a charge under paragraphs (1)(a), (b), or (c) of Section 172.2 of the Criminal Code (which deal with sexual offences against individuals under the age of consent) to argue that the accused believed that the person they engaged in sexual activity with was at least 18, 16 or 14 years old (depending on the specific offence charged). In other words, if an individual is charged with a sexual offence against a person who is under the age of consent, they cannot use the defence of mistaken belief as to the person's age, unless they took reasonable steps to ascertain the person's age. This provision is designed to protect young people from sexual exploitation and abuse, and to ensure that individuals who engage in sexual activity with minors are held accountable for their actions, regardless of whether they believed the person was of legal age or not. By requiring the accused to take reasonable steps to ascertain the person's age, the provision also places a responsibility on individuals to ensure that they are not inadvertently engaging in illegal sexual activity with minors. Overall, Section 172.2(4) is an important provision in the context of the Criminal Code of Canada, as it helps to uphold the rights and safety of young people in Canada by making clear that sexual activity with minors is a serious offence that will not be excused simply by a mistake about the person's age.
COMMENTARY
Section 172.2(4) of the Criminal Code of Canada is an important provision that seeks to protect individuals under the age of 18 from sexual exploitation. The provision stipulates that it is not a defence to a charge of sexual exploitation if the accused believed that the person referred to in paragraph (1)(a), (b) or (c) was of a certain age, unless they made reasonable efforts to ascertain the age of the person. The section acknowledges the fact that individuals who seek to engage in sexual activities with minors can be easily misled by their physical appearance or behaviour, leading to the assumption that they are of legal age. This may be particularly likely in cases involving youth who are close to the age of majority, such as 16 or 17 years old, and who are seeking to engage in sexual activity with older partners. At the same time, the provision recognizes the importance of society's responsibility to protect children and youth from sexual exploitation. As a result, the section places the onus on the accused to take reasonable steps to ascertain the age of the person they are engaging in sexual activity with, rather than allowing them to rely on their assumptions or perceptions. It is worth noting that "reasonable steps" to ascertain age will vary depending on the circumstances of the case. For example, in cases where the accused met the alleged victim online, reasonable steps may include verifying their age through a trusted platform or requesting to see a government-issued ID. In cases where the accused and alleged victim knew each other beforehand, reasonable steps might include asking them directly for their age, or asking friends or family members who know the alleged victim for confirmation. The provision also exemplifies Canada's stance on sexual violence laws, which prioritizes victim protection and consent. By placing the onus on the accused to ensure that their sexual partners are of legal age, the law removes the burden on minors and protects them against coercion, manipulation, or abuse by older individuals. However, there are criticisms of Section 172.2(4) as well. Some argue that the section places too much burden on the accused and assumes that they are fully responsible for determining their partner's age. Advocates for amendments to the section argue that the law should have a more nuanced approach where responsibility is shared and considering factors such as the alleged victim's behaviour, appearance, and other external factors that can contribute to assumptions or perceptions about age. Overall, Section 172.2(4) of the Criminal Code of Canada is an important provision that seeks to protect minors from sexual exploitation. While the burden is placed on the accused to ascertain their partner's age before engaging in sexual activity, ultimately, it serves to foster a culture that prioritizes the safety and protection of children and youth from sexual violence.
STRATEGY
Section 172.2(4) of the Criminal Code of Canada creates a strict liability offence for sexually exploiting minors. It states that it is not a defence to a charge under paragraphs (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was of legal age unless the accused took reasonable steps to ascertain the age of the person. This provision reflects the fact that the protection of minors from sexual exploitation is an important public policy concern that outweighs the potential harm to an individual's legal right to a defence. Strategic considerations when dealing with this section of the Criminal Code of Canada will depend on the specific circumstances of the case, including the nature of the alleged sexual exploitation, the age of the purported victim, the evidence available, and the individual's legal and practical options. For instance, if an individual is facing a criminal charge under this provision, the first strategic consideration is to consult with a criminal defence lawyer as soon as possible. A competent lawyer familiar with Section 172.2(4) can provide legal advice on the strength of the case, the available defences, and the potential consequences of a conviction. Additionally, a lawyer may help the accused explore various strategies that could be employed to defend against this offence. Some of these strategies may include: 1. Evidence to rebut or raise doubt about the prosecution's allegations - Where an individual is facing a criminal charge under Section 172.2(4), one possible defence is to challenge the prosecution's evidence and raise doubt about the accused's guilt. This may involve providing an alibi, presenting witnesses or expert testimony, or pointing to inconsistencies in the alleged victim's evidence. 2. Challenge the sufficiency of the evidence - Another potential defence strategy may involve challenging the sufficiency of the evidence and persuading the court that the prosecution has not met its burden of proof beyond a reasonable doubt. 3. Argue that the accused took reasonable steps to ascertain the victim's age - According to Section 172.2(4), a possible defence to a charge under Paragraphs (1)(a), (b), or (b) is if the accused took reasonable steps to ascertain the age of the person. The onus is on the accused to show that they took such steps. A strategy may involve presenting evidence to show how the accused believed the victim was of legal age or to demonstrate that they took reasonable steps to ascertain the victim's age. 4. Negotiate plea bargain - A plea bargain may be a viable strategy to avoid the risk of conviction and secure a reduced sentence for the accused. The terms of the plea deal will depend on the specific circumstances of the case and the strength of the prosecution's case. In conclusion, Section 172.2(4) of the Criminal Code of Canada creates a strict liability offence for sexually exploiting minors. Strategic considerations when dealing with this section of the Criminal Code of Canada will vary depending on the specific circumstances of the case. As such, it is crucial to consult with a criminal defence lawyer as soon as possible and explore various strategies that could be employed to defend against this offence.