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CRIMINAL CODE OFFENCES - Sexual offences - Invitation to sexual touching - Sexual exploitation - Sexual assault

Thursday, December 21, 2017 @ 8:34 AM  

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Trial of the accused on charges of sexual touching, invitation to sexual touching and sexual assault. At the time of the alleged offences, the accused was 22 years old and the complainant was 14 years old. Section 150.1 of the Criminal Code provided that if the complainant was over the age of 14 but under the age of 16, consent was not a defence to the charges if the accused was more than five years older than the complainant. The accused challenged the constitutionality of s. 150.1. He submitted that s. 150.1 offended s. 7 of the Canadian Charter of Rights and Freedoms (Charter_, as it was overbroad and had a grossly disproportionate effect on the accused. He sought that s. 150.1 be struck down, that s. 150.1 be read down to apply only to exploitative relationships, or that a rebuttable presumption be read in that a relationship was exploitative if the accused was less than five years older than the complainant. The accused conceded that if his constitutional argument failed, he was guilty of the offences charged.

HELD: Accused convicted. The object of s. 150.1, and particularly ss. 150.1(1) and (2.2), was to protect 14 and 15-year-old children from sexual contact with adults because of the inherent power imbalance between children and adults, and the consequences that flowed from that power imbalance. The law did not include any conduct that bore no relation to its purpose, and as such, was not arbitrary in part. There was a rational connection between the purposes of the law and all of its impacts. As such, it was not overbroad. The accused had an unusual upbringing. However, he was not suffering from a mental disorder so as to be exempt from criminal responsibility. He could not avoid criminal responsibility by proving that he was, in some respects, naïve, emotionally immature, and submissive, and had difficulty responding to some social situations. The evidence suggested that there was a power imbalance between the accused and the complainant. Their sexual relationship was inherently exploitative. The impact of s. 150.1 on the accused was not grossly disproportionate. Section 150.1 did not breach s. 7 of the Charter. The accused was convicted of sexual assault and sexual touching, but acquitted of invitation to sexual touching.

R. v. T.A.S., [2017] S.J. No. 519, Saskatchewan Court of Queen's Bench, B. Barrington-Foote J., November 10, 2017. Digest No. TLD-December182017008